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The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDER 

PROPOSED RULES 
Agriculture 

Cosmetic Art Examiners 
Electrolysis Examiners 
Human Resources 
Insurance 
Nursing, Board of 

LIST OF RULES CODIFIED 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

RECEIVED 
CONTESTED CASE DECISIONS 

FEB 18 1993 
ISSUE DATE: February 15, 1993 

LAW LIBRARY 
Volume 7 • Issue 22 • Pages 2485 - 2546 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments: the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC. the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (S0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1. Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 


Office 


of 


Administrativ 


e Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447, 


Raleigh, North Carolina 


27611-7447, 


(919) 


733-2678. 













NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

Executive Order 1 2485 

II. PROPOSED RULES 
Agriculture 

Markets Division 2495 

Plant Industry 2490 

Standards Division 2490 

Human Resources 

Departmental Rules 2496 

Insurance 

Actuarial Services Division .... 2498 

Licensing Boards 

Cosmetic Art Examiners 2500 

Electrolysis Examiners 2502 

Nursing, Board of 2506 

III. LIST OF RULES CODIFIED .2508 

IV. RRC OBJECTIONS 2512 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 2516 

VI. CONTESTED CASE DECISIONS 

Index to ALI Decisions 2517 

Text of Selected Decisions 

92 EHR 0550 2520 

92 EHR 0727 2525 

92 OSP 0745 2531 

92 INS 0747 2537 

VII. CUMULATIVE INDEX 2544 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



NORTH CAROLINA REGISTER 

Publication Schedule 
(August 1992 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


' Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


:■< 5JC 3-C 5Jt jjt J-4 I-C 

08/03/92 


07/13/92 


07/20/92 


08/18/92 


09/02/92 


ak ^< ^<ak :k ak >k 

09/20/92 


>k sk sk sk >k Sc >t 

11/02/92 


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07/24/92 


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1 1 U) 93 


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03/01/94 



* Tlie "Earliest Effective Date " is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDER 



EXECUTIVE ORDER NUMBER 1 
NORTH CAROLINA BOARD OF ETHICS 

WHEREAS, public office in North Carolina must 
be regarded as public trust; and 

WHEREAS, the people of North Carolina have 
a fundamental right to the assurance that officers 
of their government will not use their public 
position for personal gain; and 

WHEREAS, this Administration is committed to 
restore and maintain the confidence of North 
Carolina citizens in their government; and 

WHEREAS, there is a need in North Carolina 
for the creation of an institutionalized procedure 
designed to prevent the occurrence of conflicts of 
interest in government and to deal with them when 
they do occur; and 

WHEREAS, this Administration acknowledges 
that the vast majority of state government employ- 
ees are honest and hard working in their public 
and private lives; 

NOW, THEREFORE, it is hereby ordered: 

Section 1 . Rescission of Former Executive 

Order. 

Executive Order Number 1, dated January 31, 
1985, and all subsequent amendments thereto are 
hereby rescinded. All records, including State- 
ments of Economic Interest, of the North Carolina 
Board of Ethics created pursuant to said Executive 
Order, are transferred to the North Carolina Board 
of Ethics herein. 



North Carolina Board of Ethics. 



Section 2. 

There is hereby established the North Carolina 
Board of Ethics ("Board") consisting of seven 
persons to be appointed by the Governor to serve 
at his pleasure. The Governor shall, from time to 
time, designate one of the members as Chair. The 
members shall receive no compensation, but shall 
receive reimbursement for any necessary expenses 
incurred in connection with the performance of 
their duties pursuant to North Carolina law. The 
Board shall not be considered a public office for 
the purpose of the prohibition against dual office 
holding. 

Section 3. Persons Subject to Order. 

The following persons are subject to this order 
and to the jurisdiction of the Board: 



(a) All employees in the Office of the 
Governor. 

(b) The heads of all principal State agen- 
cies who are appointed by the Gover- 
nor. 

(c) The chief deputy or chief administrative 
assistant to each of the aforesaid heads 
of principal state agencies. 

(d) All "confidential" assistants or secretar- 
ies to the aforesaid agency heads (or to 
the aforesaid chief deputies and assis- 
tants of agency heads) as defined in 
G.S. 126-5(c)(2). 

(e) All employees in policy-making posi- 
tions as designated by the Governor 
pursuant to the State Personnel Act as 
defined in G.S. 126-5(b), and all "con- 
fidential" secretaries to these individu- 
als. 

(f) Any other employees in the principal 
state agencies, except in those agencies 
headed by an elected official other than 
the Governor, as may be designated by 
rule of the Board subject to the approv- 
al of the Governor, to the extent such 
designation does not conflict with the 
State Personnel Act. 

(g) The members of all commissions, 
boards, and councils appointed by the 
Governor, with the exception of mem- 
bers of those commissions, boards, and 
councils which the Board determines 
perform solely advisory functions. 

(h) The elected heads of other principal 
state agencies, and the employees of 
those agencies designated by the head, 
should such agency head decide to 
participate in the system created by this 
Order (see Section 8). 

(i) Members of the Board. 

Section 4. Exemption from Order. 

Notwithstanding Section 3 herein, a commission, 
board, or council to which the Governor appoints 
members, may make a written request for the 
Board to exempt its members from this Order. 
The Board shall grant such requests if it finds that 
such exemption does not violate the intent of this 
order and in no way interferes or conflicts with the 
proper and effective discharge of the official duties 
of the members of the commission, board, or 
council making the request. The determination of 
the Board in every such case shall be final. 

Section 5. Specific Prohibitions 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2485 



EXECUTIVE ORDER 



Any exception to the following prohibitions may 
only be granted by the Board upon written applica- 
tion, if it finds that such activity does not violate 
the intent of this Order and in no way interferes or 
conflicts with the proper and effective discharge of 
the official duties of the person making the re- 
quest. The Board shall indicate the specific cir- 
cumstances under which the exception is made and 
the manner in which the exception is to be carried 
out. The determination of the Board in every such 
case shall be final. 

(a) No person subject to this Order shall 
engage activity which interferes or is in 
conflict with the proper and effective 
discharge of such person's official 
duties. 

(b) No person who is employed by the state 
in a full-time position and who is sub- 
ject to this Order, shall hold any other 
public office or public employment for 
which compensation, direct or indirect, 
is received. 

(c) No person subject to this Order shall 
solicit in their official capacity any 
gratuity or other benefit for themselves 
from any other person under any cir- 
cumstances. 

Section 6. Statement of Economic Interest. 

(a) Within thirty days from commencement 
of state service or the effective date of 
this Order, whichever is later, and 
thereafter between April 15 and May 15 
of each succeeding year, each of the 
following persons subject to this Order 
shall file with the Board a sworn State- 
ment of Economic Interest 
("Statement"): 

(1) Each person appointed by the 
Governor and subject to this Order. 

(2) Each person subject to this Order, 
whether or not appointed by the 
Governor, who received $30,000.00 
or more from the state. 

(3) Each person subject to this Order, 
irrespective of the amount of 
compensation received, whose 
position is subject to undue influence 
(as determined from time to time by 
the Board). 

(4) Each person designated by the elected 
head of a principal state agency 
pursuant to Section 8 of this Order. 

(5) Members of the Board. 

(b) The Statement shall contain: 



(1) The name, home address, occupation, 
employer and business address of the 
person filing. 

(2) A list of all assets and liabilities of 
the person filing which exceed a 
valuation of $5,000. With respect to 
each asset and liability listed, the 
specific valuation need not be set 
forth, but there shall be an indication 
as to whether the valuation of each 
asset or liability exceeds $10,000. 
This list shall contain, but shall not be 
limited to the following: 

(A) All North Carolina real estate, 
with specific description adequate 
to determine the location of each 
parcel ; 

(B) The name of each publicly-owned 
company (i.e., companies which 
are required to register with the 
Securities and Exchange 
Commission) in which securities 
owned in each company listed 
exceeds $10,000. 

(C) The name of each non-public- 
owned company or business entity 
in which securities or other equity 
interest are owned, and an 
indication as to whether the 
valuation of the securities or 
equity interest owned in each such 
company or business entity listed 
exceeds $10,000. 

(D) With respect to the aforesaid non- 
publicly-owned company or 
business entities in which the 
interest of the person filing 
exceeds a valuation of $10,000, if 
any such companies or business 
entities own securities or equity 
interests in other companies or 
business entities, the name of each 
such other company or business 
entity should be listed if the 
securities or other equity interests 
in them held by the aforesaid non- 
publicly-owned company exceed a 
valuation of $10,000. 

(E) If the person filing or his or her 
spouse or dependent children are 
the beneficiary of a trust created, 
established, or controlled by the 
person filing, which holds assets, 
and if those assets are known, the 
name of each company or other 



2486 



7:21 



NORTH CAROLINA REGISTER 



February 15, 1993 



EXECUTIVE ORDER 



business entity in which securities 
or other equity interests are held 
by the trust should be listed, with 
an indication as to whether the 
valuation of the securities or 
equity interest held in each such 
company or business entity listed 
exceeds $10,000, and with the 
name and address of the trustee 
and a description of the trust. If 
any of the aforesaid assets are 
securities or other equity interests 
in a corporation or other business 
entity, each such corporation or 
business entity should be listed 
separately by name. 
(F) A list of all other assets and 
liabilities exceeding a value of 
$5,000. including bank accounts 
and debts, with an indication as to 
whether each asset or liability 
exceeds a valuation of $10,000. 

(3) A list of all sources (not specific 
amounts) of income (including capital 
gains) shown on the most recent 
federal and state income tax returns of 
the person filing where $5,000 or 
more was received from such source. 

(4) If the person filing is a practicing 
attorney, an indication of whether that 
person, and/or his or her law firm 
has, during any single year of the past 
five years, earned legal fees in excess 
of five thousand dollars ($5,000) from 
any of the following categories of 
legal representation: 

(A) Criminal Law 

(B) Utilities regulation or 
representation of regulated utilities 

(C) Corporation Law 

(D) Taxation 

(E) Decedent's estates 

(F) Labor Law 

(G) Insurance Law 

(H) Administrative Law 

(I) Real property 

(J) Admiralty 

(K) Negligence (representing 

plaintiffs) 
(L) Negligence (representing 

defendants) 
(M) Local Government 

(5) A list of all businesses with which, 
during the past five years, the person 
filing has been associated, indicating 



the time period of such association 
and the relationship with each 
business as an officer, employee, 
director, partner, or a material owner 
of a security or other equity interest 
and indicating whether or not each 
does business with or is regulated by 
the state and the nature of the 
business, if any, done with state. 

(6) In all Statements after the first one 
filed by an individual, a list of all 
gifts of a value of more than $100 
received during the twelve months 
preceding the date of the Statement 
from sources other than relatives of 
the person filing and his or her 
spouse, and a list of all gifts, of value 
of more than $50 received from any 
source having business with or 
regulated by the state. 

(7) Other information as may be deemed 
necessary to effectuate the purpose of 
this Order, as provided for by rule of 
the Board. 

(8) A declaration concerning any other 
information or relationship which the 
person filing believes may relate to 
any actual or potential conflict of 
interest he or she may have as an 
employee of state government. 

(9) A sworn certification by the person 
filing that he or she has read the 
Statement and that, to the best of his 
or her knowledge and belief, it is 
true, correct, complete and that he or 
she has not transferred and will not 
transfer any asset, interest, or other 
property for the purpose of concealing 
it from disclosure while retaining an 
equitable interest therein. 

(c) The person filing a Statement shall list 
as specified in Section 6(b) the assets, 
liabilities, and sources of income of his 
or her spouse which are derived from 
the assets or income of the person 
filing, controlled by the person filing. 
or for which the person filing is jointly 
or severally liable. 

(d) The Board shall issue a form for such 
Statements no later than February 1 . 
1993. 

(e) After review and evaluation by the 
Board, the Statements will be made 
available by the Board for public 
inspection. The Statements by the 



7:22 



NORTH CAROLINA REGISTER 



February IS, 1993 



2487 



EXECUTIVE ORDER 



Board members shall be filed with the 
Governor and shall be made public 
also. 

Section 7. Duties of the Board. 

(a) The Board shall review all Statements 
submitted to it to determine their 
conformity with the terms of this Order 
and the Boards's rules, and to evaluate 
the financial interest of the person filing 
to determine whether there appears to 
be actual or potential conflicts of 
interest. The Board shall submit a 
written report of each such evaluation 
to the official responsible for making 
the appointment of the person filing, 
and to the Governor, unless the person 
is filing a Statement pursuant to Section 
8 of this Order, in which case a copy of 
the written report shall be sent to the 
elected head of that agency. The Board 
may recommend remedial action with 
respect to any problem which is 
apparent from any Statement. 

(b) Any person required to file a Statement 
or his or her spouse may make a 
written request to the Board to delete an 
item from the Statement before it is 
placed for public inspection. The 
Board may grant the request if it finds 
that the item: 

is of a confidential nature: 

does not in any way relate to the 

duties of the position held or to be 

held by such person; and 

does not create an actual or potential 

conflict of interest. 

The decision of the Board in these matters 

shall be final. 

(c) The Board shall provide by rule for the 
time, place, and manner of convenient 
public inspection of the Statements: 
exemptions it grants under Sections 4 
or 5: 

(d) The Board shall promulgate readily 
understandable rules, forms, and 
procedures to carry out the purposes of 
this Order and shall publish them. 

(e) The Board shall render opinions and 
determinations on matters pertaining to 
the interpretation and application of this 
Order. 

(f) The Board shall provide reasonable 
assistance to all persons subject to this 
Order in complying with the terms of 



«1 
(2) 



(3) 



this Order. 

(g) The Board shall receive information 
from the public concerning potential 
conflicts of interest and make necessary 
investigations. The Board shall 

promulgate rules to protect all 
employees from specious and 
unfounded claims and damage to their 
reputations which could result from 
such claims. The Board shall 

promulgate rules to protect employees 
from any direct or indirect reprisals 
from any source resulting from efforts 
to inform the Board of the existence of 
potential or actual conflicts of interest 
in state government. The Board shall 
promulgate rules providing for full and 
fair consideration of the merits of all 
complaints received, which rules shall 
assure that the rights of all parties 
involved in the investigation are 
protected. All complaints and 

allegations concerning actual or 
potential conflicts of interest to be 
considered by the Board must contain 
the name, address, telephone number, 
and oath of the individual filing such 
complaint or making such allegation. 
The Board shall prepare a report of 
each such investigation and forward a 
copy to the official responsible for 
making the appointment of the person 
investigated, and to the Governor, 
unless the person investigated has filed 
a Statement pursuant to Section 8 of 
this Order, in which case a copy of the 
written report shall be sent to the 
elected head of that agency. The Board 
may recommend remedial action with 
respect to any problem revealed by 
such an investigation. 

(h) The Board shall request. when 
necessary to accomplish the purpose of 
this Order, additional information from 
persons covered by this Order. 

(i) The Board shall meet regularly, at the 

call of the Chair, to earn,' out its duties. 

(j) The Board shall submit a report 

annually to the Governor on its 
activities and generally on the subject 
of public disclosure, ethics, and 
conflicts of interest. including 
recommendations for administrative and 
legislative action. 

(k) The Board shall perform such other 



2488 



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SORTH CAROLINA REGISTER 



February 15, 1993 



EXECUTIVE ORDER 



duties as may be necessary to 
accomplish the purposes of this Order. 

Section 8. Other Principal State Agencies. 

The elected heads of other principal state 
agencies (e.g.. Office of the Lieutenant Governor 
and Departments of State, State Auditor, State 
Treasurer, Public Education, Justice, Agriculture, 
Labor, and Insurance) and the University of North 
Carolina Board of Governors may, and hereby are 
invited to, join in the effort represented by this 
Order by providing the Chair of the Board with a 
written notice of their decision to have the terms 
of this Order apply to those employees under their 
jurisdiction (who are not covered by the State 
Personnel Act) and a list of the employees under 
their jurisdiction who will be asked to submit a 
Statement. All services of the Board available to 
the Governor under this Order shall be available to 
each of the heads of the aforesaid agencies so 
deciding, and all of the services of the Board 
available to employees under this Order shall be 
available to employees brought within the coverage 
of this Order in this manner. 

Section 9. Sanctions. 

The failure of any employee to make timely 
filing of a required document, the intentional 
making of a false or misleading declaration or an 
intentional omission in a document, the failure to 
cooperate with the Board, and the failure to com- 
ply with the terms of this Order, shall be grounds 
for disciplinary action, including discharge. 

Section 10. Board Offices. 



The Board and its staff, for administrative pur- 
poses only, shall be located in the Department of 
Administration. 

Done in Raleigh, North Carolina, this the 9th 
day of January in the year of our Lord, one thou- 
sand nine hundred ninety-three. 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2489 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

i\ otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Board of Agriculture 

intends to amend rules cited as 2 NCAC 38 .0701; 
48A .0206 - .0207, .0216. .1702 - .1703; repeal 
rules cited as 2 NCAC 48A .0212 and .0224. 

1 he proposed effective date of this action is June 
I. 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on March 30. 1993 at the Board Room, 
Agriculture Bldg. , 2 W. Edenton St. , Raleigh, NC 
27601. 

IXeason for Proposed Action: 

2 NCAC 38 .0701 - To clarify technical require- 
ments for LP Gas installations. 

2 NCAC 48A .0206 - .0207 - Update requirements 
for importation of bees into North Carolina. 
2 NCAC 48A .0212 - To repeal obsolete rule. 
2 NCAC 48A .0216 - Update requirements for 
importation of bees into North Carolina. 
2 NCAC 48A .0224 - To repeal obsolete rule. 
2 NCAC 48A .1702 - Update noxious weed list. 
2 NCAC 48A .1703 - Update noxious weed regu- 
lated areas list. 

Ksomment Procedures: Interested persons max 
present their statements either orally or in writing 
at the public hearing or in writing prior to the 
hearing by mail addressed to David S. McLeod, 
Secretary of the North Carolina Board of Agricul- 
ture, P. O. Box 27647, Raleigh, NC, 27611. 

CHAPTER 38 - STANDARDS DIVISION 

SECTION .0700 - STANDARDS FOR 
STORAGE: HANDLING AND 
LNSTALLATION OF LP GAS 

.0701 ADOPTION BY REFERENCE 

The following are adopted by reference, in 

accordanc e — with — G-rS-. — 150B 1 4 (c). — including 

subsequent amendments, as standards for storage. 

handling and installation of liquefied petroleum 

gas: 

( 1 ) National Fire Protection Association, 

Pamphlet No. 58. "Storage and Handling 

of Liquefied Petroleum Gases," with the 

following additions and exceptions: 



(a) When two or more containers are mani- 
folded to a single service, each contain- 
er shall be considered independent of 
the other and all rules and regulations 
relating to a single container shall 
apply; 

(b) All cut-off valves and regulating equip- 
ment exposed to rain, sleet, or snow 
shall be protected against such elements 
either by design or by a hood; 

(c) "Firm Foundation" as used in Chapter 
3 of Pamphlet 58 means that the foun- 
dation material has a level top surface, 
rests on solid ground, is constructed of 
a masonry material or wood treated to 
prevent decay by moisture rot and will 
not settle, careen or deteriorate; 

(d) No person shall use liquefied petroleum 
gas as a source of pressure in lieu of 
compressed air in spray guns or other 
pressure operated equipment; aftd 

(e) Piping, tubing or regulators shall be 
considered well supported when they 
are rigidly fastened in their intended 
position^ and 

(f) At bulk storage installations, the con- 
crete bulkhead or equivalent anchorage 
and the plant piping on the hose side of 
the bulkhead or equivalent anchorage 
shall be engineered and constructed so 
that any direction of pull on the liquid 
or vapor loading or unloading piping 
will not result in damage to the bulk 
plant piping on the tank side of the 
bulkhead or equivalent anchorage. 

(2) National Fire Protection Association. 

Pamphlet No. 54, "National Fuel Gas 

Code," with the addition that 

underground service piping shall rise 

above ground immediately before 

entering a building. 

Copies of Pamphlet No. 54 and Pamphlet No. 58 

are available for inspection in the Office of the 

Director of the Standards Division and mav be 

obtained at a cost as determined by the publisher 

by contacting National Fire Protection Association. 

Inc.. Batterymarch Park. Qiiiney, Massachusetts 

02269. 

Statutory Authority G.S. 119-55; 150B-14. 

CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48A - PLANT PROTECTION 



2490 



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NORTH CAROLINA REGISTER 



February 15, 1993 



PROPOSED RULES 



SECTION .0200 - HONEY AND BEE 
INDUSTRY 

.0206 THE TRANSPORTATION OF 
BEES 

The transportation or importation into North 
Carolina from any other state or country of bees of 
the superfamily apoidea in any stage of 
development, the causal agents of their diseases or 
disorders, their pests, their products, nests or 
hives, and associated equipment are prohibited 
except under the following conditions: 

(1) All bees of the superfamily apoidea 
except apis mellifera and cross bred 
strains of apis mellifera with other 
species of apis that are naturalized in the 
United States shall be allowed entry into 
North Carolina only by scientific permit. 
Procedures for obtaining scientific 
permit: 

(a) An application for a permit to move 
regulated articles shall be obtained 
from: 

State Apiarist 

Plant Industry Division 

North Carolina Department of 

Agriculture 

Post Office Box 27647 

Raleigh, North Carolina 27611 

This application should be returned to the State 

Apiarist for processing; 

(b) Decisions on acceptance or rejection of 
applications for movement of regulated 
articles for scientific purposes are based 
on the following criteria: 

pest or disease risk hazard; 

safeguards against spread which can 

be applied; 

amount of material involved; 

biological conditions in the area in 

which the regulated article is to be 

moved; 

method of packaging and method of 

shipment to be employed; 

use for which the regulated articles is 

to be applied; 

(2) Bees of the species, apis mellifera and 
strains of apis mellifera cross bred with 
other species of apis that are naturalized 
in the United States herein referred to as 
bees and their equipment and products 
may be allowed entry into North Carolina 
under the following conditions: 

(a) Live adult bees in cages, without combs 
or foundation provisioned with "candy" 



(i) 
(ii) 

(iii) 
(iv) 



(V) 



(vi) 



or "syrup" made from sugar and boiled 
honey possessing a valid certificate of 
inspection will be admitted when not 
from an area under quarantine; The 

certificate e-f- inspection mu s t 

specifically show or be accompanied by 
certification of apparent freedom from 
the honeybee tracheal mite, Acnrapis 
woodi. Rcnnic. — The certification mu s t 
be based on in s pection, sampling, and 
laboratory analy s is criteria as required 
by the State Apiarist; 

(b) Bees on combs or foundation, nuclei, 
used hives, used combs and other used 
apiary equipment of any kind are 
prohibited except by permit issued 
according to the provisions of these 
rules; 

(c) New or unused apiary equipment and 
products packed for nonbee 
consumption may be transported into 
North Carolina without restriction; 

(d) Pollen shipped for bee food may be 
transported into North Carolina when 
free of bee disease; 

(e) Nuclei of commercial beekeepers or a 
beekeeper who is not regularly in the 
business of raising queens, package 
bees or nuclei for sale are prohibited 
except by permit issued according to 
the provisions of these rules; 

(f) Nuclei of queen breeders, package bee 
producers, or nuclei producers may be 
accompanied by a valid certificate of 
apiary inspection issued by the proper 
official of the state of origin and 
marked with the North Carolina 
compliance agreement number. A 
compliance agreement may be made 
between the State Apiarist and those 
rearing bees for sale as nuclei in other 
states providing the shipper agrees to 
the conditions in the compliance 
agreement; 

(g) The transportation into North Carolina 
from any other state or country of bees 
on comb, used hive bodies, frames, 
combs and other apiary equipment may 
be allowed into North Carolina when 
each shipment is accompanied by a 
valid permit issued by the State 
Apiarist; any colony or colonies of bees 
or used apiary equipment of any kind 
found to be moving or to have been 
moved into North Carolina in violation 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2491 



PROPOSED RULES 



of the requirements of this Section shall 

be subject to seizure, destruction, or 

such other disposition as shall be 

determined by the State Apiarist, or 

other authorized inspector, without 

compensation to the owner; 

(3) Bees may be transported freely within 

North Carolina except as restricted by 

quarantine, clean-up areas, or other rules 

herein. 

Statutory Authority G.S. 106-634 through 106-644. 

.0207 REQUIREMENTS FOR 
ISSUANCE OF PERMIT 

(a) No permits for entry' into North Carolina 
will be issued until the following information has 
been filed with the State Apiarist: 

( 1 ) A valid certificate of apiary inspection 
from the State Entomologist or apiary 
inspector of the state of origin of said 
bees and equipment to the effect that 
said bees and equipment have been 
inspected within 60 days of the 
proposed date of entry into North 
Carolina and found apparently free 
from contagious and infectious diseases, 
and giving the number of colonies 
inspected, date of inspection, whether 
all of the bees owned by the owner of 
said bees were inspected and included 
in the certificate; certificates not 
meeting the requirements of the State 
Apiarist regarding specific diseases 
inspected for and thoroughness of 
inspection may be rejected; 

(2) If the bees and equipment have been in 
more than one state during the year 
previous to the date on the certificate 
filed with the North Carolina State 
Apiarist, a certificate for each state the 
bees have been in must be filed with 
the North Carolina State Apiarists; 

(3) A statement from the owner of said 
bees and equipment giving the number 
of colonies of bees and amount of 
equipment to be brought into North 
Carolina, the proposed date of entry 
into the state, and where the bees and 
equipment will be located in the state; 
Exception: permits may be issued to 
beekeepers in states having no 
inspection service when the State 
Apiarist feels he has sufficient evidence 
to assure that the bees are not infected 



with foulbrood or any other dangerous 
disease; 

(4) Permission from the owner of said bees 
has been given for North Carolina 
inspectors to inspect at any time the 
bees and equipment while in North 
Carolina; 

(5) A permit may be granted for used 
beekeeping equipment without bees 
upon receipt of one of the following: 

(A) A statement from the State 
Entomologist or state apiary inspector 
of the state of origin that the bees on 
which the equipment was last used 
have been inspected and found free of 
American foulbrood or other 
dangerous diseases; 

(B) The equipment has been fumigated 
wrtb — ethylene — oxide — m — accordance 
with — label — direction s or otherwise 
sterilized in such a manner that in the 
opinion of the State Apiarist the 
equipment is not infested with free of 
infectious American foulbrood or 
other dangerous disease; 

(6) The State Apiarist may require 
specified marking or other identification 
of used beekeeping equipment as a 
prerequisite for granting a permit; 

(7) The State Apiarist may require special 
treatments, or fumigations as a 
prerequisite for granting a permit from 
areas under quarantine: 

(8) The State Apiarist may waive parts of 
these requirements if he has sufficient 
evidence to believe the bees are 
disease-free. 

(b) The proposed location of imported bees and 
bee equipment in North Carolina shall be approved 
by the State Apiarist in advance of issuance of a 
permit. The following criteria may be considered 
in making a determination that the requested 
movement of bees or equipment could create or 
lead to overcrowding of bees or other detrimental 
conditions at the proposed site: 

(1) The bees population or density in the 
proposed entry area and proximity to 
other bees with respect to creation of 
conditions favoring honeybee stress 
diseases or increased disease or pest 
spread hazard; 

(2) The number of colonies for which the 
entry permit is requested; 

(3) The adequacy of the honey pasture in 
the proposed entry area; 



2492 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



PROPOSED RULES 



(4) The effect on incorporated cities in 
North Carolina or any local bee 
ordinance; 

(5) The effect on honeybee research being 
conducted in North Carolina; 

(6) The effect on honeybee disease 
quarantine or clean-up areas in North 
Carolina; 

(7) Any previous locations or enforcement 
histories in North Carolina; 

(8) Any unusual or mitigating 
circumstances; and 

(9) The timing of the request. 

Statutory Authority G.S. 106-634 through 106-644. 

.0212 COLONIES OF BEES FOR 

SALE IN NORTH CAROLINA 

Colonics of honeybees owned by individuals not 
regularly in the busines s of selling bees may be 
sold without inspection and health certification. 
However, no one shall knowingly sell diseased 
bee s or contaminated equipment. 

Statutory Authority G.S. 106-634 through 106-644. 

.0216 FUMIGATION OR STERILIZATION 
OF APIARY EQUIPMENT 

(a) The State Apiarist may allow fumigation or 
sterilization of diseased bee equipment in lieu of 
destruction. Fumigation shall be in a miskoe type 
vacuum — fumigation — chamber — utilizing — ethylene 
oxide in accordance with label direction s . 

(b) If fumigation by private sources is not 
readily available, the State Apiarist may provide 
and operate the chamber for fumigation of diseased 
bee equipment in lieu of destruction. The 
beekeeper shall pay for the cost of ethylene oxide 
gas the fumigant used in these and all fumigations 
made at request of the beekeeper. 

(c) The State Apiarist may perform other 
fumigations without charge for research and 
methods improvement and in some cases where 
sterilization or disinfection is not required the 
inspector may fumigate materials of questionable 
hazard as a buffer or supplement to a disease 
clean-up without charge. 

(d) The State Apiarist shall dispose of honey, 
wax or bee equipment abandoned in connection 
with the fumigation program in a manner where 
there is no disease spread hazard. 

Statutory Authority G.S. 106-634 through 106-644. 

.0224 POISONING OF HONEYBEES 



BY PESTICIDES 

For the purpo s e of this Section the following 
shall apply: 

fH Requests for assi s tance in diagno s i s of 

honeybee poisoning s will be responded to 
as quickly as po ss ible after the poisoning 
has occurred if it i s a recent ease (less 
than — a — month — after- — poi s oning — has 
occurred); 






Old — ca s e s — ©f- — poi s oning — w+H be 

investigated the next time the inspector's 
schedule take s him to the area; 
Diagnosis of poisonings will be made 
according — to — the — established — ASCS 
criteria; 
-G 



made for 



crtitioation of poisonings i s 
beekeepers requesting beekeeper pesticide 
poison — indemnity — from — the — ASCS 
according to their established criteria; 

{§) Inve s tigation s may be made to determine 

which pesticides are unsafe to bee s and 
findings — made — available — te — persons 
determining u s e patterns of pe s ticides in 
North Carolina; 



(9- 



tep 



nve s tigations may be made to deve 
management — practices — te — protect — bees 
from pesticide damage; 

f7-} Beekeepers may be assisted in treatment 

or management of bees for recovery from 
pe s ticide damage. 

Statutory Authority G.S. 106-634 through 106-644. 

SECTION .1700 - STATE NOXIOUS WEEDS 

.1702 NOXIOUS WEEDS 

(a) Class A Noxious Weeds. The North 
Carolina Board of Agriculture hereby incorporates 
by reference, including subsequent amendments 
and editions of the referenced materials, the 
following list of Class A Noxious Weeds: 

UJ all All weeds listed in 7 C.F.R. 

§360.200. Copies of the Code of 

Federal Regulations may be obtained 

from the Superintendent of Documents. 

Government Printing Office, 

Washington, DC 20402, at a cost 

determined by that office; 

Elodea. African ~ Lagarosiphon spp. 

(all species); 

Fern, Water ~ Salvinia spp. (all except 

S. rotundifolia); 

Stonecrop. Swamp ~ Crassula helmsii; 



ill 



ill 



<4] 



Water-chestnut ~ Trapa spp. 



(b) Class B Noxious Weeds. The North 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2493 



PROPOSED RULES 



Carolina Board of Agriculture hereby establishes 
the following list of Class B Noxious Weeds: 

(1) Betony, Florida--Stachys floridana 
Shuttlew.; 

(2) Fieldcress, Yellow--Rorippa sylvestris 
(L.) Bess.; 

(3) Loosestrife, Purple — Lythrum salicaria 

La 

(4) @) Puncturevine--Tribulus terrestris 
L.; 

(5) f4) Thistle, Canada— Cirsium arvense 
(L.) Scop.; 

(6) (5-) Thistle, Musk— Carduus nutans L.; 

(7) {6) Thistle, Plumeless— Carduus 
acanthoides L.; 

(8) Watermilfoil. Eurasian — Mvriophvllum 
spicatum L.: 

(9) Waterprimrose, Uruguay — Ludwigia 
uruguayensis (Camb.) Hara. 

(c) Class C Noxious Weeds. The North 
Carolina Board of Agriculture hereby establishes 
the following list of Class C Noxious Weeds: 
none. 

(d) Other Noxious Weeds. The Commissioner 
may take appropriate action against any other 
noxious weed as provided in the Plant Pest Law, 
Article 36, Chapter 106 of the General Statutes. 

Statutory Authority G.S. 106-420. 

.1703 REGULATED AREAS 

(a) Except as permitted in 2 NCAC 48A .1705 
and .1706, the following is prohibited: 

(1) The movement of Canada Thistle 
[Cirsium arvense (L.) Scop.] or any 
regulated article infested with Canada 
Thistle from the following counties is 
prohibited: Ashe, Avery, Haywood, 
Mitchell, Northampton, Yancey; 

(2) The movement of Class A or B noxious 
weeds or any regulated article infested 
with Class A or B noxious weeds into 
North Carolina is prohibited; 

(3) The movement of a Class A noxious 
weed or any regulated article infested 
with any Class A noxious weed is 
prohibited throughout the State; 

(4) The movement of Eurasian 
Watermilfoil (Mvriophyllum spicatum 
L.) or any regulated article infested 
with Eurasian Watermilfoil from the 
following counties is prohibited: 
Halifax, Northampton, Perquimans. 
Tyrrell. Warren; 

(5) {4) The movement of Florida Betony 



(Stachys floridana Shuttlew.) or any 
regulated article infested with Florida 
Betony from the following counties is 
prohibited: Brunswick, Cumberland, 
Forsyth, Hoke, New Hanover, Onslow, 
Wake; 

(6) f§) The movement of Musk Thistle 
(Carduus nutans L.) or any regulated 
article infested with Musk Thistle from 
the following counties is prohibited: 
Buncombe, Cleveland, Chatham. 
Gaston, Henderson^ Lincoln, Madison, 
Randolph. Rowan, Rutherford ; 

(7) (4) The movement of Plumeless Thistle 
(Carduus acanthoides L.) or any 
regulated article infested with Plumeless 
Thistle from the following counties is 
prohibited: Jackson, Haywood, 
Madison, Watauga; 

(8) f?) The movement of Puncturevine 
(Tribulus terrestris L.) or any regulated 
article infested with Puncturevine from 
the following counties is prohibited: 
Durham, New Hanover; 

(9) The movement of Purple Loosestrife 
(Lythrum salicaria L.) or any regulated 
article infested with Purple Loosestrife 
from the following counties is prohibit- 
ed: Forsyth, Watauga: 

(10) The movement of Uruguay 
Waterprimrose rLudwigia uruguayensis 
(Camb.) Hara.l or any regulated article 
infested with Uruguay Waterprimrose 
from the following counties is 
prohibited: Bladen, Brunswick, 
Columbus, Durham. Granville. Hyde. 
New Hanover. Orange. Rowan. Wake. 
Warren; 

(11) t&) The movement of Yellow 
Fieldcress [Rorippa sylvestris (L.) 
Bess.] or any regulated article infested 
with Yellow Fieldcress from the 
following county is prohibited: 
Orange. 

(b) Other regulated areas. The Commissioner 
may take appropriate action as authorized under 
the Plant Pest Law, Article 36, Chapter 106 of the 
General Statutes, to designate as a regulated area 
any state or portion of a state in which he has 
reasonable cause to believe that a noxious weed 
exists, and there is an immediate need to prevent 
its introduction, spread or dissemination in North 
Carolina. 

Statutory Authority G.S. 106-420. 



2494 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



PROPOSED RULES 






Notice is hereby given in accordance with G.S. 150B-21.2 that the N.C. Board of Agriculture intends to 
amend rules cited as 2 NCAC 43L .0401 - .0403 and .0405. 

1 he proposed effective date of this action is October 1 , 1993. 

1 he public hearing will be conducted at 10:00 a.m. on March 30, 1993 at the Board Room, Agriculture 
Bldg., 2 W. Ed en ton St., Raleigh, NC, 27601. 

Reason for Proposed Action: To increase fees for the use of the Western North Carolina Farmers Marker. 

(comment Procedures: Interested persons may present their statements either orally or in writing at the 
public hearing or in writing prior to the hearing by mail addressed to David S. McLeod, Secretary of the 
North Carolina Board of Agriculture, P. O. Box 27647, Raleigh, NC, 27611. 

CHAPTER 43 - MARKETS 

SUBCHAPTER 43L - MARKETS 

SECTION .0400 - FEES: WESTERN NORTH CAROLINA FARMERS MARKET 

.0401 RETAIL BUILDINGS 

Rental charges for space in the "Retail Buildings" shall be at the rate of five dollars ($5.00) per day or thirty 
-five dollars ($30.00) ($35.00) per week per assigned space of 10 feet by 20 feet from June through October 
and two dollars ($2.00) per day wh e n th e spac e is us e d or fourteen dollars ($14.00) per week during the 
months of November through May. A holding fee often dollars ($10.00) per month shall b e charg e d during 
Dec e mb e r. January. February and March for each space to be rented on April 1 . 

Statutory Authority G.S. 106-530. 

.0402 GATE FEES 

Gate fees for farmers or truckers who do not otherwise rent stall spaces at the Market shall be as follows: 



Cars Vehicles. 5 cartons or less 
than 5 cartons 

Pickups 

Ton trucks/6 wheelers : 

50 cartons or less 
More than 50 cartons 

10 Wheeler: 

50 cartons or less 

51 to 100 cartons 
More than 100 cartons 

18 Wheeler: 

20 cartons or less 

21 to 100 cartons 

101 cartons to half load 
More than half load 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2495 



Resident 


Non-Resident 


Sellers 


Sellers 


$ 1.00 


$ 1.00 


4^0 5.00 


SrQO 6.00 


4^0 5.00 


5^0 6.00 


6r00 7.00 


7-rOO 8.00 


4t00 5.00 


5^00 6.00 


6^00 7.00 


7-^0 8.00 


7-^0 8.00 


8^00 9.00 


§-£0 6.00 


5^00 6.00 


7-tOQ 8.00 


7-tOO 8.00 


8^0 9.00 


8^00 9.00 


10.00 


10.00 



PROPOSED RULES 



Trucks which deliver such items as soft drinks, candy, snack bar supplies and freight are exempt from the 
gate fees stated in this Rule. 

Statutory Authority G.S. 106-530. 

.0403 FARMERS AND TRUCKERS SHEDS 

Rental charges for space under the "Farmers and Truckers Sheds" for each 12 foot wide stall shall be six 
dollars ($6.00) per day,, forty dollars ($40.00) per week, or one hundred twenty five thirty-five dollars 
($125.00) ($135.00) per month from June through October , s eventy five i five dollars ($5.00) per day, thirty 
dollars ($30.00) per week, or eighty-five dollars ($75.00) ($85.00) per month for April, May, November and 
December^ and fifty five dollars ($5.00) per day, twenty dollars ($20.00) per week, or sixty dollars ($50.00) 
($60.00) per month for January, February, and March. Electricity used shall be paid for in addition to these 
regular fees. A holding fee of ten twenty dollars ($10.00) ($20.00) per month shall be charged during 
December, January, February and March for each space to be rented on April 1. 

Statutory Authority G.S. 106-530. 

.0405 YEARLY DELIVERY PERMIT 

Truckers, farmers, or wholesalers making regular deliveries to the market may obtain a yearly delivery 
permit for ene three hundred and fifty dollars ($150.00 ) ($300.00) . These permits shall expire December 31 
of the year purchased. 



Statutory Authority G.S. 106-22: 106-530. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

1\ otice is hereby given in accordance with G.S. 
150B-21.2 that DHR/Secretary's Office intends to 
adopt rule cited as 10 NCAC ID .0107. 

1 he proposed effective date of this action is May 
1. 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Written demand for a public- hearing may 
be directed to Rose Tlwmpson , N. C. Department 
of Human Resources, 101 Blair Drive. Raleigh. 
NC 27603 on or before March 3. 1993. 

Reason for Proposed Action: Tfie Department is 
frequently asked by persons and organizations to 
provide copies of departmental material and 
records. Often this is expensive and time consum- 
ing. 

l^omment Procedures: Written comments may be 
directed to Rose Thompson , N. C. Department of 
Human Resources. 101 Blair Drive. Raleigh, NC 
27603 on or before March 17. 1993. 



CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER ID - LNFORMATION 
SECTION .0100 - PUBLIC INFORMATION 

.0107 FEES 

A fee of ten cents ($0. 10) per page shall be 
charged by the Department of Human Resources, 
Central Administration to persons requesting 
material from department records. 

Statutory Authority G.S. 12-3.1; 143B-10; 150B- 
11. 



y^c^:^(^:^^:^:^:^e^:^:^c 



;£ $z % Jj: 



ll otice is hereby given in accordance with G.S. 
150B-21.2 that DHR/Secretary's Office intends to 
adopt rules cited as 10 NCAC 1M .0001 - .0008. 

1 he proposed effective date of this action is May 
1. 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Written demand for a public hearing may 
be directed to Steven P. Rader (or successor). 
General Counsel, N. C. Department of Human 



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PROPOSED RULES 



Resources, 101 Blair Drive, Raleigh, NC 27603 on 
or before March 3, 1993. 

Reason for Proposed Action: 28 CFR . 107(b), 
implementing the Americans with Disabilities Act 
(ADA) requires adoption of grievance procedures 
to resolve complaints under Title II of the ADA. 

(comment Procedures: Written comments may be 
directed to Steven P. Rader (or successor), Gener- 
al Counsel, N. C. Department of Human Resources, 
101 Blair Drive, Raleigh, NC 27603 on or before 
March 17, 1993. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER 1M - ADA GRIEVANCE 
PROCEDURES 

.0001 APPLICABILITY AND SCOPE 

This Subchapter provides for the prompt and 
equitable resolution of complaints against any 
division within the Department of Human Resourc- 
es alleging any action prohibited by the U.S. 
Department of Justice regulations implementing 
Title II of the Americans with Disabilities Act, 28 
CFR Part 35. 

Authority 28 C.F.R. 35.107. 

.0002 COMPLALNTS 

(a) A complaint shall be filed m writing, contain 
the name and address of the person filing it, and 
briefly describe the alleged violation of 28 CFR 
Part 35. If the complainant requires secretarial 
assistance in preparing the complaint due to his 
disability, the Division ADA Coordinator shall 
provide such assistance upon request of the com- 
plainant. 

(b) A complaint shall be filed with the Division 
ADA Coordinator within 60 days after the com- 
plainant becomes aware of the alleged violation. 
Allegation of discrimination which occurred prior 
to the effective date of these Rules will be consid- 
ered on a case by case basis. 

Authority 28 C.F.R. 35.107. 

.0003 INVESTIGATION 

An investigation of the allegations of the com- 
plaint shall be conducted by a Section Chief 
designated by the Division ADA Coordinator. The 
investigation shall be informal but thorough afford- 



ing all interested persons and their representatives, 
if any, an opportunity to submit evidence relevant 
to the complaint. 

Authority 28 C.F.R. 35.107. 

.0004 WRITTEN DETERMINATION 

A written determination as to the validity of the 
complaint and a description of the resolution, if 
any, shall be issued by the Division ADA Coordi- 
nator and a copy forwarded to the complainant no 
later than 30 days after the filing of the complaint. 

Authority 28 C.F.R. 35.107. 

.0005 RECONSIDERATION 

(a) The complainant may request a reconsidera- 
tion of the determination as to the validity of the 
complaint in instances where he is dissatisfied with 
the resolution. The request for reconsideration 
shall be made to the Division Director within 30 
days of the issuance of the determination of validi- 
ty 

(b) A written determination to ffie request for 
reconsideration shall be issued by the Division 
Director or his designee, and copy forwarded to 
the complainant and ADA Coordinator within 30 
days after the filing of a request for reconsidera- 
tion. 

Authority 28 C.F.R. 35. 107. 

.0006 RECORDS 

The Division ADA Coordinator shall maintain 
the files and records of the Division relating to the 
complaints filed, written determinations issued, 
and any reconsiderations requested or issued. 



Authority 28 C.F.R. 35.107. 

.0007 OTHER REMEDIES 

The right of a person to a prompt and equitable 
resolution of the complaint filed under this Sub- 
chapter shall not be impaired by the person's 
pursuit of other remedies such as the filing of an 
ADA complaint with the responsible federal 
department or agency. Use of the procedures of 
this Subchapter is riot a prerequisite for the pursuit 
of other remedies. 

Authority 28 C.F.R. 35.107. 

.0008 CONSTRUCTION 

This Subchapter shall be construed to protect the 
substantive rights of interested persons to meet 



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2497 



PROPOSED RULES 



appropriate due process standards and to assure 
that the Department and the Divisions comply with 
Title H of the Americans with Disabilities Act and 
implementing regulations. 

Authority- 28 C.F.R. 35. 107. 

TITLE 1 1 - DEPARTMENT OF 
INSURANCE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to adopt rules cited as 11 NCAC 16 .0301 
- .0303. 

1 he proposed effective date of this action is May 
3. 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on March 5, 1993 at the Dobbs Building, 
Tfiird Floor Hearing Room, 430 N. Salisbury 
Street. Raleigh, N.C. 27611. 

iXeason for Proposed Action: To provide for 
interpretative and substantive rules in the imple- 
mentation of the Small Group Health Insurance 
Reform Act. . 

(comment Procedures: Written comments may be 
sent to Walter James, P.O. Box 26387, Raleigh, 
N. C. 27611. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call Walter James at 733-3284 or Ellen 
Sprenkel at 733-4529. 

tLditor's Note: Tltese Rules were filed as tempo- 
rary rules effective January 25, 1993 for a period 
of 180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER 16 - ACTUARIAL SERVICES 
DIVISION 

SECTION .0300 - SMALL EMPLOYER 
GROUP HEALTH ESTSURANCE 

.0301 DEFECTIONS AND SCOPE 

(a) The definitions contained in G.S. 58-50-1 10 
are incorporated into this Section by reference. 

(b) This Section applies to all health benefit 
plans and carriers subject to the North Carolina 



Small Employer Group Health Coverage Reform 
Act. 

Statutory Authority G.S. 58-2-40; 58-50-1 30(b). 

.0302 RESTRICTIONS ON PREMIUM 
RATES 

(a) Each class of business shall have its own rate 
manual. The rate manual will be used to: 

Audit the actuarial certification with 



ill 



(2) 



regards to the relationship of one em- 
ployer group to the others within a 
class; and 

Determine compliance with the relation- 
ship of one class to the other classes. 



(bj The requirement in G.S. 58-50-130(b)(2) 



that within a class the premium rates charged 
during a rating period to small employers shall not 
vary' from the index rate by more than 35 percent 
shall be met as follows: 

(1 ) The carrier shall calculate for each 
class of business, using the rate manual 
for that class, an index rate for each 
plan of benefits and for each small 
employer census within that class of 
business. 

(2) For each small employer within a given 
class of business, the carrier shall cal- 
culate the ratio of the premium rate 
charged the small em ployer during the 
rating period to the index rate for the 
census, plan of benefits, and class of 
business of that small employer calcu- 
lated in Subparagraph ( 1 ) of this Para- 
graph. 

(3) The ratio calculated in Subparagraph 
(2) of this Paragraph shall be between 
.65 and 1.35. inclusive. 

Other methods may be used if the results will be 
equivalent. 

(cj The requirement in G.S. 58-50- 130(b)(1) that 
the index rate for a rating period for any class of 
business shall not exceed the index rate for any 
other class of business by more than 25 percent 
shall be met as follows: 

( 1 ) The carrier shall define a representative 
census of its business and a representa- 
tive actuarially equivalent plan of bene- 
fits. 

(2) The carrier shall calculate an index rate 
based upon Subparagraph ( 1 ) of this 
Paragraph for each class of business. 

(3) The carrier shall identify the class of 
business with the lowest index rate. 

(4) The ratio of the index rate calculated 



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PROPOSED RULES 



for each class of business in Subpara- 
graph (2) of this Paragraph to the low- 
est index rate identified in Subpara- 
graph (3) of this Paragraph shall be 
between 1 .00 and 1 .25, inclusive. 
Any change in the representative census or repre- 
sentative actuarially equivalent plan of benefits 
used in Subparagraphs ( 1 ) through (4) of this 
Paragraph shall be specifically documented and the 
test must be performed on both the previous and 
new census or actuarially equivalent plan of 
benefits at the time of change; and the results of 
both tests shall be disclosed within the annual 
actuarial certification filing. Other methods may 
be used if the results will be equivalent. 

(d) The acceptability of a proposed rate increase 
for a small employer for health benefit plans 
issued on or after January L, 1992, shall be deter- 
mined as follows: 

(1) Calculate a new business premium rate 
for the new rating period using the 
actual census and plan of benefits for 
the small employer at the beginning of 
the new rating period. 

(2) Calculate a now business premium rate 
for the prior rating period using the 
actual census and plan of benefits for 
the small employer at the beginning of 
the prior rating period. 

(3) Divide Subparagraph (1) of this Para- 
graph by Subparagraph (2) of this 
Paragraph and multiply this quotient by 
the gross premium in effect at the 
beginning of the prior rating period. 
This product is fhe maximum renewal 
premium for the new rating period 
associated with G.S. 58-50- 130(b)(3)a 
and G.S. 58-50-130(b)(3)c. 

(4) Subparagraph (3) of this Paragraph may 
be adjusted by a percentage of the gross 
premium in force before renewal. This 
percentage shall not exceed 15 percent 
per year prorated for the months 
elapsed between the previous and the 
new rating dates. 

(5) Multiply Subparagraph (3) of this Para- 
graph by one plus the percentage m 
Subparagraph (4) of this Paragraph . 

The maximum renewal rate increase is Subpara- 
graph (5) of this Paragraph if Paragraphs (b) and 
(c) of this Rule are satisfied. If the resulting 
maximum renewal rate increase calculated in 
Subparagraph (5) of this Paragraph does not satisfy 
Paragraphs (b) and (c) of this Rule, the maximum 
renewal premium shall be reduced until Paragraphs 



(b) and (c) of this Rule are satisfied. Other meth- 
ods may be used if the results will be equivalent, 
(e) The acceptability of a proposed rate increase 
for a small employer for health benefit plans 
issued before January 1, 1992. shall be determined 
as follows: 

(1) Calculate a new business premium rate 
for the new rating period using the 
actual census and plan of benefits for 
the small employer at the beginning of 
the new rating period. 

(2) Calculate a new business premium rate 
for the prior rating period using the 
actual census and plan of benefits for 
the small employer at the beginning of 
the prior rating period. 

(3) Divide Subparagraph (1) of this Para- 
graph by Subparagraph (2) of this 
Paragraph and multiply this quotient by 
the gross premium in effect at the 
beginning of the prior rating period. 
This product is the maximum renewal 
premium for the new rating period 
associated with G.S. 58-50-130(b)(7)a 
and G.S. 58-50-l30(b)(7)b. 

(4) The ratio of Subparagraph (3) of this 
Paragraph to its associated index rate 
shall not exceed the ratio of the gross 
premium in effect before January L, 
1992, and its associated index rate in 
effect before January J^ 1992. 

The maximum renewal rate increase in Subpara- 
graph (4) of this Paragraph is not subject to Para- 
graphs (b) and (c) of this Rule during a three-year 
transition period ending January L, 1 995 . After 
January _L 1995, the acceptability of a proposed 
rate increase for a small employer shall be based 
only on Paragraph (d) of this Rule. Other methods 
may be used if the results will be equivalent. 

Statutory Authority G.S. 58-2-40; 58-50-1 30(b). 

.0303 ANNUAL FILING 

Each carrier shall make a filing with the Depart- 
ment as of March 15 of each year for each class of 
insurance administered under this Rule. The filing 
shall include: 

(1) An actuarial certification stating that: 

(a) The carrier is in compliance with all 
provisions of this Section; and 

(b) The rating methods of fiie carrier are 
actuarially sound. 

(2) A list and description of each class of 
business in the State. The description 
shall include: 



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2499 



PROPOSED RULES 



(a) The category of the class as described 
in G.S. 58-50-113; 

(b) Whether or not the class is open to new 
business; and 

(c) If the number of classes in a particular 
category exceeds three, the initial filing 
must include a request for approval of 
the additional classes. 

(3) A written description of the definition of 
the representative census used in 1 1 
NCAC 16 .0302(c) and a statement that 
the representative census has either 
changed or not changed during the period 
between annual filings. 

(4) A written description of the definition of 
the representative actuarially equivalent 
plan of benefits used in JJ. NCAC 16 
.0302(c) and a statement that the repre- 
sentative actuarially equivalent plan of 
benefits has either changed or not 
changed during the period between annu- 
al filings. 

(5) A statement that the test outlined in 1 1 
NCAC 16 .0302(c) has been performed 
on both the previous and new definitions 
of the representative census and the 
actuarially equivalent plan of benefits, if 
such definitions have changed. 

(6) A written description of the results of the 
test performed in Paragraph (5) of this 
Rule and an explanation addressing the 
reason for changing either the definition 
of the representative census or the repre- 
sentative actuarially equivalent plan of 
benefits, or both. 

An acceptable format for the actuarial certification 
is on file at the Department. Copies may be 
obtained from the Department at the cost for 
copies stated in G.S. 58-6-5(3). 

Statutory Authority G.S. 58-2-40; 58-50-130. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

Notice is hereby given in accordance with G.S. 
1 SOB -2 1.2 that the N. C. State Board of Cosmetic- 
Art Examiners intends to amend rules cited as 21 
NCAC 14A .0101; 14N .0106 and .0113. 

1 he proposed effective date of this action is May 
3, 1993. 



1 he public hearing will be conducted at 1:30 
p.m. on March 8, 1993 at the Grove Towers, Fifth 
Floor. 1110 Navaho Dr., Raleigh, N. C. 

Ixeason for Proposed Action: 

21 NCAC 14A .0101 - To identify some hair styles 
included in the practice of Cosmetology. 
21 NCAC 14N .0106 - To establish separation of 
interpreter and model. 

21 NCAC 14N .0113 - To establish that all appli- 
cants have a limited number of times they can fail 
an exam - (g) method by which an apprentice 
examinee can obtain a cosmetology license other 
than an apprenticeship. 

Comment Procedures: Die record shall be open 
for 30 days to receive written or oral comments. 
Written comments should be received by the N. C. 
State Board of Cosmetic Art Examiners by March 
17. 1993. and requests to speak must be in writing 
and received by March 1. 1993 prior to hearing, 
to be considered as part of the hearing record. 
Comments should be addressed to Vicky R. 
Goudie, Executive Secretary, N. C. State Board of 
Cosmetic Art Examiners, 1110 Navaho Dr., 
Raleigh, N.C. 27609. Speaking time 5 minutes. 

CHAPTER 14 - BOARD OF COSMETIC 
ART EXAMLNERS 

SUBCHAPTER 14A - DEPARTMENTAL 
RULES 

SECTION .0100 - ORGANIZATIONAL 
RULES 

.0101 DEFLNITIONS 

The following definitions apply in this Chapter: 

(1) "Beauty Establishment" refers to both 
cosmetic art schools and cosmetic art 
shops. 

(2) "Board" refers to the North Carolina 
State Board of Cosmetic Art Examiners. 

(3) "Cosmetic Art School" refers to any 
place where cosmetic art, as defined by 
G.S. 88-2, or methods of teaching 
cosmetic art are taught for purposes of 
licensing by the Board regardless of the 
title of the school or program. 
"Cosmetic Art" includes all methods and 
styles of braiding the hair, coloring the 
hair, and extending or thickening an 
individual's own hair by the 



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February 15, 1993 



PROPOSED RULES 



incorporation of additional hair. 

(4) "Cosmetic Art Shop" refers to any 
building, or part thereof, wherein 
cosmetic art, as defined by G.S. 88-2, is 
practiced, other than a cosmetic art 
school. 

(5) "Cosmetology School" is any cosmetic 
art school which teaches cosmetology as 
defined by G.S. 88-2, Paragraph 2, but is 
not a manicurist school. 

(6) "Cosmetology Student" is a student in 
any cosmetic art school with the 
exception of a manicurist student. 

(7) "Cosmetology Teacher" is any teacher 
who is licensed by the Board to teach the 
cosmetic arts. 

(8) "Manicuring" is that set of cosmetic arts 
related to the nails, hands, arms and feet. 
It includes traditional manicuring, 
pedicuring, arm and hand massages, and 
all types of artificial nails. 

(9) "Manicurist School" is a cosmetic art 
school which teaches only the cosmetic 
arts of manicuring. 

(10) "Manicurist Student" is a student in any 
cosmetic art school whose study is 
limited to the manicurist curriculum set 
forth in 21 NCAC 14K .0002. 

(11) "Manicurist Teacher" is a teacher who is 
licensed by the Board to teach only the 
manicuring curriculum. 

(12) "Booth" is a work station within a 
cosmetic art shop which is used primarily 
by one cosmetologist or manicurist in 
performing cosmetic art services for their 
clientele. "Booth" does not include the 
reception area, lavatories, common 
hair-drying facilities, common 
shampooing facilities or other areas used 
in common by the cosmetologists or 
manicurists working within a cosmetic art 
shop. 



Star it ton Authority G.S. 



-1. 



SUBCHAPTER 14N - EXAMINATIONS 
SECTION .0100 - GENERAL PROVISIONS 

.0106 USE OF AN INTERPRETER 

(a) A candidate whose native language is not 
English may apply for permission to bring an 
interpreter to the examination, if the candidate is 
unable to speak, read, or write English at a tenth 
grade level. 



(b) The interpreter shall be: 

(1) 18 years old or older, and 

(2) fluent in both English and the 
candidate's native or other language. 

(c) An interpreter shall not: 

(1) be currently or formerly licensed by 
this state or any state, nor have 
received or is currently receiving any 
training, in any branch of cosmetic art; 

(2) be a current or former owner or 
employee of any beauty establishment: 

(3) be simultaneously a model for any 
candidate taking the examination. 

(d) The application for permission to use an 
interpreter shall be made on a form provided by 
the Board. 

Statutory Authority G.S. 88-10(2); 88-12(2); 
88-16; 88-17; 88-21 (a)( 16); 88-23; 88-30(4). 

.0113 REEXAMINATION 

(a) If, upon application for re-examination, the 
applicant has taken and passed one section of an 
examination, he or she shall apply for 
re-examination only on the section of the 
examination which he or she did not pass. 

(b) Applicants for re-examination must apply for 
re-examination in writing and pay the appropriate 
examination fee. 

(c) Notwithstanding any other provision of these 
Rules, pursuant to G.S. 88-16(4), a cosmetology 
candidate, having or other candidates who have 
failed either section of the examination five times, 
is required to complete an additional 200 hours of 
study at an approved cosmetic art school before 
another application for re-examination may be 
accepted by the Board. 

(d) Any candidate for the cosmetology teacher 
examination, or manicurist teacher examination, 
who fails the examination twice, must meet the 
following requirements before taking the 
examination again: 

(1) Any candidate who failed the practical 
portion must request an examination 
review, and must complete no less than 
200 hours in a teacher training course. 

(2) The course of study for that candidate 
must be designed to address the 
candidate's deficiencies. 

(e) Upon written request by any candidate, the 
Board shall release a summary of the results of 
each category of the practical section of the most 
recent examination to the school in which the 
candidate is enrolled for the additional study. 
pursuant to G.S. 88-16(4) or Paragraph (d) of this 



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February 15, 1993 



2501 



PROPOSED RULES 



Rule. 

(f) The school in which the student has enrolled 
pursuant to G.S. 88-16(4) shall design a course of 
studv for that student in order to correct the 
student's deficiencies. The course of study must 
be submitted to the Board for approval. 

(g) A candidate for licensure as an apprentice 
cosmetologist who: 

1. 1 1 passes the examination with a score of 
75 percent or more on both sections; 
and 

(2) subsequently completes an additional 

300 hours within one year of the exami- 
nation date may be licensed as a cosme- 
tologist under G.S. 88-12 without retak- 
ing the examination. 

Statutory Authority G.S. 88-10(2); 88-12(2); 
88-16; 88-17; 88-21(a)(16); 88-23: 88-30(4). 

l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Electrolysis Examiners intends to adopt rules cited 
as 21 NCAC 19 .0401 - .0403. .0601. 

1 he proposed effective date of this action is May 
3, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on March 19. 1993 at the North Carolina 
Real Estate Commission. 1313 Navaho Drive. 
Raleigh. NC 27609. 



Reason for Proposed Action: 



21 NCAC 19 .0401 - .0403 - It is necessary to set 
minimum standards for sanitation, equipment and 
supplies in electrolo gists ' offices for the protection 
of the public 

21 NCAC 19 .0601 - It is necessary for the Board 
to inform the public of the Board's curriculum 
requirements for approved schools. 

Ksomment Procedures: Die record of hearing will 
be open for receipt of written comments from 
February 15. 1993 through March 19. 1993. 
Written comments may cither be submitted at the 
hearing or delivered to the Board at its mailing 
address (do Patricia Holland. 205 Westview 



Place. High Point, NC 27260). Anyone wishing 
to speak at the hearing should notify Charlene Bell 
in writing at the Board's mailing address no later 
than 5:00 p.m. the day before the meeting. Any- 
one whose written request to speak is not received 
by this deadline will only be able to speak if time 
permits. 

CHAPTER 19 - BOARD OF 
ELECTROLYSIS EXAMINERS 

SECTION .0400 - SANITATION, 
EQUIPMENT AND SUPPLIES 

.040 1 LNEECTION CONTROL STANDARDS 

(a) No electrologist or student who has weeping 
dermatitis or draining lesions shall participate m 
direct client care and care of client-care equipment 
until the condition has cleared. Electrologists and 
students who have other infectious diseases or 
conditions shall follow any applicable control 
measures for communicable diseases and condi- 
tions set out in L5A NCAC 19A .0200 as adopted 
by the Division of Health Services of the Depart- 
ment of Human Resources. 

(b) No electrologist or student shall work on any 
client who has weeping dermatitis or draining 
lesions. 

(ci All electrologists and students shall wash 
hands before beginning work on a client, after 
inadvertently touching sores and skin eruptions. 
after contact with blood or body fluids containing 
visible blood, and before putting on and after 
removing gloves. Soaps, detergents, or germicidal 
skin preparations shall be used to wash hands. 

(d) Each client's skin must be cleaned before 
treatment by removing visible soil with soap and 
water or a germicidal skin preparation, then 
wiping with an antiseptic product applied with 
material such as cotton balls. 

(ei All electrologists and students shall wear 
nonsterile examination gloves during all client-care 
procedures. Gloves may not be washed or disin- 
fected for reuse: each client shall be treated with 
fresh, unused gloves. 



(f) All equipment and instruments shall be 
cleaned and either sterilized or disinfected |n 
accordance with 21 NCAC 19 .0402. 



(_gj Any gowns, lab coats or coveralls worn by 
electrologists or students must be changed if 
contaminated. 



(h) Any paper or cotton towels or sheets used to 
cover the treatment table and for draping shall be 
changed after use by each client and replaced with 
fresh, unused or laundered towels or sheets. If 



2502 



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PROPOSED RULES 



gowns are provided for clients, each client shall 
receive a fresh, unused paper gown or a freshly 
laundered cloth gown. 

(i) All electrologists and students shall keep the 
workplace area clean and litter-free, including the 
treatment table and the surfaces of equipment. 

(j) Used disposable needles and other sharp 
items must be placed in puncture-resistant contain- 
ers for disposal. Such containers shall be kept 
easily accessible to the workplace area. Other used 
discarded materials (for example, paper towels. 



recommended by the Association for 
Practitioners in Infection Control. 



tissue, cotton balls, Q-tips, gloves) shall be placed 
and sealed in a plastic bag for disposal. 

(k) Any soiled linen shall be placed in a regular 
laundry bag or closed container and kept until jt 
can be laundered. 

(1) Any staff member who is not an electrologist 
or student but who participates in client care or 
care of client-care equipment shall comply with 
this Rule. 

Statutory Authority G.S. 88A-16. 

.0402 STERILIZATION AND 
DISINFECTION 

(a) Equipment and instruments shall be sterilized 
or disinfected before use on a client in accordance 
with the following schedule: 

Category I (Critical): Instruments and 

objects that 
come into direct 
contact with the 
blood stream and 
other normally 
sterile areas of 
the body. 
Items jn this category must be purchased sterile or 
sterilized using an autoclave or dry heat sterilizer. 

Category II (Semicritical): Instruments and 

objects that 
come into direct 
contact with 
nonmucous 
membranes or 
skin that is not 
intact. 

Items in this category shall either be: 

( 1 ) purchased sterile or sterilized, using an 
autoclave or a dry heat sterilizer, or 
chemical sterilization using a method 
recommended by the Association for 
Practitioners in Infection Control, or 

(2) given a physical cleaning followed by 
high-level disinfection using a method 



Category HI (Noncritical): Instruments and 

objects that do 
not ordinarily 
touch the client 
or those that 
contact only 
intact skin. 
Items in this category need not be sterilized but 
shall be cleaned with a detergent and hot water or 
given low-level disinfection using a method recom- 
mended by the Association for Practitioners in 
Infection Control. 

(b) Autoclaves and dry heat sterilizers shall be 
of a type approved by the Federal Food and Drug 
Administration. 

(c) Disposable instruments and other items may 
not be resterilized or redisinfected for reuse on 
another client. 

(d) Glass bead sterilizers may not be used. 

(e) Instruments and other items to be sterilized 
must be cleaned prior to sterilization. Cleaning 
may be done either manually, using water and 
detergent, scrubbing with a small brush, and 
thoroughly rinsing; or ultrasonically, following the 
manufacturer's directions. Items not to be used 
immediately following sterilization must be pack- 
aged for storage prior to sterilization. 

(f) Packaged sterilized items must be either 
discarded or, if not disposable, resterilized after 
their shelf-life has expired. 

(g) Biological indicators must be run on a 
monthly basis on autoclaves or dry heat sterilizers 
used to sterilize instruments and other items to be 
used in electrolysis. A record of the results of 
each test and records of any repairs to autoclaves 
or dry heat sterilizers must be kept for at least 18 
months. Every electrologist and student shall be 
responsible for insuring that the requirements of 
this Paragraph are followed for each autoclave or 
dry heat sterilizer used in sterilizing any instru- 
ments or other items used by that person. 

Statutory Authority G.S. 88A-I6. 

.0403 OFFICES 

(a) Each office, wherever located, shall have at 
least the following: 

(1) treatment table or other piece of furni- 
ture for placing clients for treatment: 

(2) at least one circuline-type lamp, halo- 
gen lamp, or other type or magnifying 
lamp; 



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February 15, 1993 



2503 



PROPOSED RULES 



(3) accessible handwashing facilities on the 
same floor and accessible toilet facili- 
ties in the same building, and both must 
have a supply of either soap or a germi- I 
cidal skin preparation for washing 
hands; 

(4) a sup ply of nonsterile examination 
gloves, cotton balls and antiseptic prod- 
uct for cleaning client's skin, materials 
for cleaning instruments and other 
items, materials for cleaning the 
workplace or documentation of cleaning 
contract, paper or cotton towels, and 
puncture resistant containers and plastic 
bags for used materials; 

(5) sterilization equipment and su pplies 
needed for the sterilization methods 
chosen; 



(6) a covered trash can and, if linens are 
used, a laundry bag or closed container 
for laundry, readily available to each 
workplace area; and 

(7) storage facilities sufficient to contain 
the equipment, instruments and supplies 
of the electrolysis practice. 

(b) Each office shall be kept clean and orderly, 
including all workplace areas , lavatory and water 
closet facilities, and all equipment. 

Statutory Authority G.S. 88A-16. 



SECTION .0600 - SCHOOLS 

.0601 CURRICULUM 

The course of study for electrolysis shall consist of at least 600 clock hours of instruction in theory and 
clinical practice as set out in the following table: 

Subject Theory Clinical 

Hours Hours 

General Orientation 20 

Rules of the school 
Personal hygiene and dress 
Professional ethics and office rules 
State and local laws governing electrolysis 
History of electrolysis 

Trichology (Hair Growth) 20 

Hair structure and function 
Growth cycles, including regrowth cycles 
Follicle structure and function 

Endocrinology 20 

Causes of hair growth, including new hair stimulation 



2504 7:22 NORTH CAROLINA REGISTER February 15, 1993 



PROPOSED RULES 



» 



Study and function of glands 

Dermatology 30 

Skin structure and function 

Disease of the skin (as related to the practice of electrology) 
Reaction of the skin as related to the clinical application of electrolysis 

Neurology /Angiology (as related to electrology) 20 

Nervous system 

Pain thresholds 

Pain variables 

Synoptic responses 
Circulatory system 

Cardiovascular system 

Lymphatic system 

Bacteriology 25 40 

Sanitation 
Sterilization 
Rules and standards promulgated by the Board 

Principles of Electricity 20 80 

Short wave (Alternating) current 
Direct (Galvanic) current 

Equipment 30 200 

Modalities 

Electrolysis (DC - Galvanic) 

Thermolysis (SW : Shortwave) 

Blend (Combination of Galvanic and Shortwave) 
Variables 

Probes 

Intensity 

Timing 

Depth of insertion 
Equipment maintenance and upkeep 

General Treatment Procedure 25 30 

Consultation with clients 

Consultation instruction shall include methods of 

developing case histories and providing information 

on hair growth cycles, modalities used, pain factors, 

scheduling of appointments, and fees 
Positioning and draping 

Development of Practice 20 20 

Public relations and advertisement 
Office procedure and management 
Record keeping 
Telephone etiquette 
Housekeeping (Office') 

Totals: 230 370 

Statutory' Authority G.S. 88A-19. 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2505 



PROPOSED RULES 



x :< x 



%: % ^ sfi ^ 



;< :< A :* s: x x 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Nursing intends to adopt rule cited as 21 NCA C 36 
.0226. 

1 he proposed effective date of this action is May 
3. 1993. 

1 he public hearing will be conducted at 4:00 
p.m. on March 11. 1993 at the North Carolina 
Board of Nursing Office, 3724 National Drive, 
Suite 201, Raleigh, North Carolina 27612. 

Ixeason for Proposed Action: To define the legal 
scope of nurse anesthesia practice and establish 
the qualifications which must be met by the regis- 
tered nurse who performs these advanced nursing 
skills. 

Comment Procedures: Any person wishing to 
present oral testimony relevant to proposed rules 
may register at the door before the hearing begins 
and present hearing officer with a written copy of 
testimony. Written comments concerning this 
adoption must be submitted by March 16, 1993, 
to: North Carolina Board of Nursing, P. O. Box 
2129, Raleigh, NC 27602, ATTN: Jean H. Stanley, 
CPS, APA Coordinator. 

CHAPTER 36 - BOARD OF NURSING 

SECTION .0200 - LICENSURE 

.0226 NURSE ANESTHESIA PRACTICE 

(a) Only those registered nurses who meet the 
qualifications as outlined in Paragraph (b) of this 
Rule may perform nurse anesthesia activities 
outlined in Paragraph (el of this Rule. 

(b) Qualifications and Definitions: 

( 1 J The registered nurse who completes a 
program accredited by the Council on 
Accreditation of Nurse Anesthesia 
Educational Programs, is credentialed 
as a certified registered nurse anesthe- 



tist by_ the Council on Certification of 
Nurse Anesthetists, and who maintains 
recertification through the Council on 
Recertification of Nurse Anesthetists, 
may perform nurse anesthesia activities 



ill 



13] 



in collaboration with a physician, den- 
tist, podiatrist, or other lawfully quali- 
fied health care provider. 
The graduate nurse anesthetist |s a 
registered nurse who has completed a 
program accredited by the Council on 
Accreditation of Nurse Anesthesia 
Educational Programs, [s awaiting 
initial certification by the Council on 
Certification of Nurse Anesthetists and 
is listed as such with the Board of 
Nursing. The graduate nurse anesthe- 



tist may perform nurse anesthesia activ- 
ities under the supervision of a certified 
registered nurse anesthetist, physician, 
dentist, podiatrist, or other lawfully 
qualified health care provider provided 
that initial certification [s obtained with 
18 months after completion of an ac- 
credited nurse anesthesia program. 
Collaboration is a process by which the 
certified registered nurse anesthetist or 
graduate nurse anesthetist works with 
one or more qualified health care pro- 
viders, each contributing his or her 
respective area of expertise consistent 
with the appropriate occupational licen- 
sure laws of ffie State and the estab- 
lished policies, procedures, practices 
and channels of communication within 
the practice setting which lend support 
to nurse anesthesia services. The indi- 
vidual nurse anesthetist maintains ac- 
countability for the outcome of his or 
her actions. 



(c) Nurse Anesthesia activities and responsibili- 
ties which the appropriately qualified registered 
nurse anesthetist may safely accept are dependent 
upon the individual's knowledge and skills and 
other variables in each practice setting as outlined 
in 21 NCAC 36 .0224(a). These activities hi; 
elude: 

( 1 ) Preanesthesia preparation and evalua- 
tion of the client to include: 

(A) performing a pre-operative health 
assessment: 

(B) recommending, requesting and evalu- 
ating pertinent diagnostic studies; and 

(C) selecting and administering preanes- 
thetic medications. 

(2) Anesthesia induction, maintenance and 
emergence of the client to include: 

(A) securing, preparing and providing 
basic safety checks on all equipment, 
monitors, supplies and pharmaceutical 



2506 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



PROPOSED RULES 






agents used for the administration of 
anesthesia; 

(B) selecting, implementing, and manag- 
ing general anesthesia, monitored 
anesthesia care, and regional anesthe- 
sia modalities, including administering 
anesthetic and related pharmaceutical 
agents, consistent with the client's 
needs and procedural requirements; 

(C) performing tracheal intubation, extu- 
bation and providing mechanical 
ventilation; 

(D) providing appropriate perianesthetic 
invasive and non-invasive monitoring, 
recognizing abnormal findings, imple- 
menting corrective action, and re- 
questing consultation with appropri- 
ately qualified health care providers 
as necessary; 

(E) managing the client's fluid, blood, 
electrolyte and acid-base balance; and 

(F) evaluating the client's response during 
emergency from anesthesia and imple- 
menting pharmaceutical and support- 
ive treatment to ensure the adequacy 
of client recovery from anesthesia. 

(3) Postanesthesia Care of the client to 
include: 



(A) 



im 



1Q 



ID] 



' 



(E) 



providing postanesthesia follow-up 
care, including evaluating the client's 
response to anesthesia, recognizing 
potential anesthetic complications, 
implementing corrective actions, and 
requesting consultation with appropri- 
ately qualified health care profession- 
als as necessary; 

initiating and administering respirato- 
ry support to ensure adequate ventila- 
tion and oxygenation in the immediate 
postanesthesia period; 
initiating and administering pharmaco- 
logical or fluid support of the cardio- 
vascular system during the immediate 
postanesthesia period; 
documenting all aspects of nurse 
anesthesia care and reporting the 
client's status, perianesthetic course, 
and anticipated problems to an appro- 
priately qualified postanesthetic health 
care provider who assumes the 
client's care following anesthesia 
consistent with 21 NCAC 36 .0224(f); 
and 
releasi ng 



as ger established agency policy, 
(d) Other clinical activities for which the quali- 
fied registered nurse anesthetist may accept respon- 
sibility include, but are not limited to: 

(1) inserting central vascular access cathe- 
ters and epidural catheters; 

(2) identifying, responding to and manag- 
ing emergency situations, including 
initiating and participating in cardio- 
pulmonary resuscitation; 

(3) providing consultation related to respi- 
ratory and ventilatory care and imple- 
menting such care according to estab- 
lished policies within the practice set- 
ting; and 

(4) initiating and managing pain relief 
therapy utilizing pharmaceutical agents, 
regional anesthetic techniques and other 
accepted pain relief modalities accord- 
ing to established policies and protocols 
within the practice setting. 

Statutory Authority G.S. 90-171.20(7); 90- 
171.42(b). 



clients froi 



the 
postanesthesia care or surgical setting 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2507 



LIST OF RULES CODIFIED 



1 he List of Rules 


Codif 


ed 


is a listing of rules that were filed with OAH in the month indicated. 


Key- 








Citation 




= 


Title, Chapter, Subchapter and Rule(s) 


AD 




= 


Adopt 


AM 




= 


Amend 


RP 




= 


Repeal 


With Chgs 




= 


Final text differs from proposed text 


Eff. Date 




= 


Date rule becomes effective 


Temp. Expires 




Rule was filed as a temporary rule and expires on this date or 180 days 



NORTH CAROLINA ADMINISTRATIVE CODE 



DECEMBER 1992 



TITLE 



DEPARTMENT 



TITLE 



DEPARTMENT 



2 


Agriculture 


16 


4 


Economic and Community 


17 




Development 


21 


10 
11 


Human Resources 
Insurance 




15A 


Environment, Health 
and Natural Resources 





Education 

Revenue 

Occupational Licensing Boards 

10 - Chiropractic Examiners 

12 - General Contractors 

14 - Cosmetic Art Examiners 

46 - Pharmacy 



Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


2 NCAC 9L .0524 




/ 






02/01/93 




4 NCAC IK .0103 


/ 








12/29/92 




.0204 - .0207 


/ 








12/29/92 




.0302 


/ 








12/29/92 




10 NCAC 3R .3001 




/ 






01/04/93 




.3020 




/ 




/ 


01/04/93 




.3030 




/ 




/ 


01/04/93 




.3032 


/ 








01/04/93 




.3040 




/ 




/ 


01/04/93 




.3050 


/ 






/ 


01/04/93 




14K .0103 




/ 




/ 


01/04/93 




.0314 - .0315 




/ 






01/04/93 





2508 



7:22 



XORTH CAROLINA REGISTER 



February 15, 1993 



LIST OF RULES CODIFIED 






1 





Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


10 NCAC 140 .0106 




/ 






01/04/93 




14Q .0303 




/ 






01/04/93 




14R .0104 - .0105 




/ 






01/04/93 




18J .0604 




/ 






01/04/93 




18L .0333 




/ 






01/04/93 




.1525 


/ 








01/04/93 




18P .0903 




/ 




/ 


01/04/93 




.1003 




/ 




/ 


01/04/93 




26H .0103 




/ 




/ 


01/04/93 




.0104 




/ 






01/04/93 




.0106 




/ 




/ 


01/04/93 




.0303 




/ 






01/04/93 




.0401 




/ 




/ 


01/04/93 




.0404 


/ 






/ 


01/04/93 




.0509 


/ 






/ 


01/04/93 




26N .0101 - .0104 


/ 






/ 


01/04/93 




.0301 - .0304 


/ 






/ 


01/04/93 




45H .0202 




/ 






01/04/93 




50B .0101 




/ 






01/04/93 




11 NCAC 1 .0108 


/ 








01/01/93 




.0431 


/ 








01/01/93 




6A .0802 




/ 




/ 


01/01/93 




11 A .0602 


/ 






/ 


12/29/92 




12 .1301 - .1309 


/ 








12/21/92 


180 DAYS 


16 .0205 




/ 






01/01/93 




15A NCAC 2D .1002 




/ 






01/01/93 


180 DAYS 


2H .0805 




/ 




/ 


12/21/92 




4D .0003 




/ 






01/04/93 




7H .0308 




/ 




/ 


12/28/92 




13B .0101 




/ 




/ 


01/04/93 




.0103 




/ 




/ 


01/04/93 




.0201 




/ 






01/04/93 




.0202 




/ 




/ 


01/04/93 







7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2509 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


15A NCAC 13B .0501 - .0502 




/ 






01/04/93 




.0503 




/ 




/ 


01/04/93 




.0506 - .0507 






/ 




01/04/93 




.0560 


/ 








01/04/93 




.0562 


/ 








01/04/93 




.0563 - .0564 


/ 






/ 


01/04/93 




.0565 


/ 








01/04/93 




.0566 


/ 






/ 


01/04/93 




.1202 




/ 




/ 


01/04/93 




.1207 




/ 




/ 


01/04/93 




14A .0502 




/ 




/ 


01/04/93 




.0512 




/ 




/ 


01/04/93 




14C .0001 


/ 








01/04/93 




.0002 


/ 






/ 


01/04/93 




.0003 - .0004 


/ 








01/04/93 




.0005 


/ 






/ 


01/04/93 




.0006 - .0009 


/ 








01/04/93 




16A .0402 - .0412 






/ 




01/04/93 




19 A .0401 




/ 




/ 


01/04/93 




.0404 




/ 






01/04/93 




.0502 




/ 




/ 


01/04/93 




.0503 






/ 




01/04/93 




19B .0503 




/ 






01/04/93 




21F .0801 




/ 






01/04/93 




.0802 




/ 




/ 


01/04/93 




.0803 






/ 




01/04/93 




.0804 




/ 






01/04/93 




16 NCAC 1A .0001 




/ 




/ 


01/01/93 




6D .0103 




/ 






01/01/93 




17 NCAC 6B .0613 


/ 








01/01/93 




21 NCAC 10 .0205 




/ 






01/01/93 




12 .0901 


/ 






/ 


01/04/93 




.0902 


/ 








01/04/93 







2510 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 






LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


21 NCAC 12 .0903 - .0904 


/ 






/ 


01/04/93 




.0905 - .0906 


/ 








01/04/93 




.0907 - .0908 


/ 






/ 


01/04/93 




.0909 


/ 








01/04/93 




.0911 - .0912 


/ 








01/04/93 




14L .0301 - .0302 


/ 








01/01/93 




46 .2504 


/ 






/ 


01/04/93 





, 



I 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2511 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 
Banking Commission 

4 NCAC 3F .0402 - Required and Permissible Investments 
Departmental Rules 

4 NCAC IK .0103 - Eligible Applicants 
Agency Revised Rule 

4 NCAC IK .0204 - Discretionary Public Hearing by the Department 
Agency Revised Rule 

4 NCAC IK .0205 - Formal Application Procedures: Approval 
Agency Revised Rule 

4 NCAC IK .0206 - Formal Application Procedures: Denial 
Agency Revised Rule 

4 NCAC IK .0207 - Reimbursement of Extraordinary Expense 
Agency Revised Rule 

4 NCAC IK .0302 - Criteria for Making Necessary Findings- 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

ISA NCAC 7H .0308 - Specific Use Standards for Ocean Hazard Areas- 
Rule Returned to Agency 



Environmental Management 

15A NCAC 2H .0805 - Certification and Renewal of Certification 
Agency Revised Rule 
Rule Returned to Agency- 
Agency Filed with OAH 

Governor's Waste Management Board 

15 A NCAC 14C .0005 - Conditions for Grants 
Agency Revised Rule 

Solid Waste Management 

15 A NCAC 13B .0103 - General Conditions 
Agency Revised Rule 

Wildlife Resources and Water Safety 



RRC Objection 01/21/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



11/19/92 
12/17/92 
11/19/92 
12/17/92 
11/19/92 
12/17/92 
11/19/92 
12/17/92 
11/19/92 
12/17/92 
11/19/92 
12/17/92 



RRC Objection 11/19/92 

12/17/92 

RRC Objection 01/21/93 



RRC Objection 10/15/92 

RRC Objection 10/15/92 

11/19/92 

Eff. 12/21/92 



RR C Objection 12/1 7/92 
Obj. Removed 12/17/92 



RRC Objection 12/17/92 
Obj. Removed 12/17/92 



2511 



7:22 



XORTH CAROLINA REGISTER 



February 15, 1993 



RRC OBJECTIONS 



15A NCAC 101 .0001 - Definitions 
Agency Responded 
Agency Responded 

HUMAN RESOURCES 

Medical Assistance 

10 NCAC 26D .0012 - Time Limitation 

Agency Withdrew Rule 
10 NCAC 26N .0201 - Offer to Counsel 
Agency Withdrew Rule 

Mental Health: General 

10 NCAC 14K .0103 - Definitions 
Agency Revised Rule 

INDEPENDENT AGENCIES 



RRC Objection 10/15/92 
No Action 11/19/92 

No Action 12/17/92 



RR C Ojbection 1 2/1 7/92 
12/17/92 

RRC Objection 12/17/92 
12/17/92 



RRC Objection 
Obj. Removed 



12/17/92 
12/17/92 



■ 



N.C. Housing Finance Agency 

24 NCAC 1M .0202 - Eligibility 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0204 - Selection Procedures 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0205 - Administration 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0206 - Program Fees 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0301 - Goal and Objectives 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0302 - Eligibility Requirements- 
No Response from Agency 

No Response from Agency 
24 NCAC 1M .0303 - Threshold Review Criteria 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0306 - Funding Commitment 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0401 - Goals and Objectives 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0402 - Eligibility Requirements- 
No Response from Agency 

No Response from Agency 
24 NCAC 1M .0403 - Ttireshold Review Criteria 

No Response from Agency- 
No Response from Agency 



RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 



10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2513 



RRC OBJECTIONS 



24 NCAC 1M .0404 - Ranking Criteria 

No Response from Agency 

No Response from Agency 
24 NCAC 1M .0405 - Agency Board Approval 

No Response from Agency 

No Response from Agency 

INSURANCE 

Agent Services Division 

1 1 NCA C 6A . 0802 - Licensee Requirements 
Agency Revised Rule 

Departmental Rules 

11 NCAC 1 .0432 - Manufactured Housing Board Hearings 
Agency Withdrew Rule 

Financial Evaluation Division 

11 NCAC 11 A .0602 - Licensure 
Agency Revised Rule 
Rule Returned to Agency 

Multiple Employer Welfare Arrangements 

11 NCAC 18 .0019 - Description of Forms 

Seniors' Health Insurance Information Program 

11 NCAC 17 .0005 - SH11P Inquiries to Insurers and Agents 

LICENSING BOARDS AND COMMISSIONS 

Cosmetic Art Examiners 

21 NCAC 14L .0301 - Applicants Licensed as Teachers in Other States 

Agency Revised Rule 
21 XCAC 14L .0302 - Requirements for Obtaining a Teacher's License 

Agency Revised Rule 

General Contractors 

21 NCAC 12 .0901 - Definitions 

Agency Revised Rule 
21 NCAC 12 .0908 - Order Directing Payment from Fund 

Agency Revised Rule 
21 NCAC 12 .0910 - Limitations; Pro Rata Distribution 

REVENUE 

Individual Income. Inheritance and Gift Tax Division 
17 NCAC 3B .0401 - Penalties 



RRC Objection 10/15/92 

No Action 11/19/92 

No Action 12/17/92 

RRC Objection 10/15/92 

No Action 11/19/92 

No Action 12/17/92 



RRC Objection 12/17/92 
Obj. Removed 12/17/92 



RRC Objection 12/17/92 
12/17/92 



RRC Objection 11/19/92 

RR C Objection 1 1 11 9192 

12/17/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



RR C Objection 1 1 II 9/92 

Obj. Removed 12/17/92 

RRC Objection 11/19/92 

Obj. Removed 12/17/92 



RRC Objection 12/17/92 

Obj. Removed 12/17 '92 

RR C Objection 12/1 7/92 

Obj. Removed 12/17/92 

RRC Objection 12/1 7 '92 



RRC Objection 08/20/92 



2514 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



RRC OBJECTIONS 



1 7 NCA C 3B . 0402 - Interest 

Individual Income Tax Division 

17 NCA C 6B .0107 - Extensions 

17 NCAC 6B .0115 - Additions to Federal Taxable Income 

17 NCAC 6B .01 16 - Deductions from Federal Taxable Income 

17 NCAC 6B .0117 - Transitional Adjustments 

1 7 NCA C 6B . 3406 - Refunds 



RRC Objection 08/20/92 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 






i 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2515 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals . Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West. Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems. Petitioner v. The North Carolina 
Department of Community Colleges and Die North Carolina Department of Administration, Respondent and 
The University of Southern California, lntervenor-Respondent (92 DOA 0666). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries. Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d) (10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina. William Cobey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment , Health, and 
Natural Resources. Wayne Babbitt Jr. . as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources. Respondents (91 EHR 0818). 



2516 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Commission DST 

BDA Board of Dental Examiners EDC 

BME Board of Medical Examiners EHR 

BMS Board of Mortuary Science 

BOG Board of Geologists ESC 

BON Board of Nursing HAF 

BOO Board of Opticians HRC 

CFA Commission for Auctioneers IND 

COM Department of Economic and Community INS 

Development LBC 

CPS Department of Crime Control and Public Safety MLK 

CSE Child Support Enforcement NHA 

DAG Department of Agriculture OAH 

DCC Department of Community Colleges OSP 

DCR Department of Cultural Resources PHC 

DCS Distribution Child Support 

DHR Department of Human Resources POD 

DOA Department of Administration SOS 

DOJ Department of Justice SPA 

DOL Department of Labor 

DSA Department of State Auditor WRC 



Department of State Treasurer 
Department of Public Instruction 
Department of Environment, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Raymond E. Dresser Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0960 


Nesnow 


01/27/93 


Wilma K. Hanton 

v. 

University of North Carolina at Chapel Hill 


91 OSP 1106 


Morgan 


01/19/93 


Deerwood Health & Fitness Center, Bill J. Mayes 

v. 

EHR, Transylvania County Health Department 


92 EHR 0016 


Morgan 


01/28/93 


Mid South Water Systems, Inc. 
v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0336 


Reilly 


01/20/93 


Harriss & Moore, Inc. 

v. 

County of Forsyth, Environmental Affairs Dept. 


92 EHR 0383 


Becton 


01/29/93 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2517 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Sanford Finishing Company 

v. 

EHR, Division of Environmental Management 


92 EHR 0550 


West 


01/19/93 


William M. Barwick 
v. 

EHR, Division of Coastal Management 


92 EHR 0607 


Chess 


01/21/93 


Ronnie R. Bailey. Bailey's Convenient Mart 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0715 


Morgan 


01,13,93 


Gourmet Cafe. Inc. 
v. 

Department of Environment. Health. & Natural Resources 


92 EHR 0727 


Mann 


01/13/93 


Lilah Faye Hinton 

v. 

Durham County Department of Social Services 


92 OSP 0730 


Morgan 


01/22/93 


Ralph Stamey 

v. 

Department of Correction 


92 OSP 0745 
92 OSP 0893 


Morrison 


01/28/93 


Carolina Medieorp. Inc.. et al. Cleveland Memorial 
Hospital. Inc., et al. Moore Regional Hospital, et al 

v. 

Bd of Trustees of the Teachers" & St Emp Comprehensive 

Major Medical Plan & David G. Devries 


92 INS 0747 
92 INS 0825 
92 INS 0880 


Reilly 


01/29/93 


Steven R. Swint 

v. 

Pembroke State University 


92 OSP 0768 


Nesnow 


01/21/93 


Henry L. Grady 

v. 

Department of Human Resources. Caswell Center 


92 OSP 0808 


Mann 


01/22/93 


Lillian Lennon 

v. 

Durham County Department of Social Services 


92 OSP 0819 


Morgan 


01/22/93 


Southchem. Inc. 

v. 

EHR. Solid Waste Management Division 


92 EHR 0925 


Chess 


12/31/92 


Ruth C. Walker 

v. 

Rockingham County Board of Health 


92 OSP 0957 


Morgan 


01 25/93 


Stella Pitt 

v. 

DHR. Divison of Facility Services 


92 DHR 1030 


Nesnow 


01/21/93 



2518 



7:22 



NORTH CAROLINA REGISTER 



February 15. 1993 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Michael S. Hart 

v. 
Bd/Trustees//NC Local Governmental Emp Retirement Sys 


92 DST 1040 


Gray 


01/26/93 


Franklin Delno Slade, t/a Slade & Son Grocery Store 

v. 
Alcoholic Beverage Control Commission 


92 ABC 1046 


Nesnow 


01/27/93 


John P. Kavanagh 

v. 

Department of Correction 


92 OSP 1094 


Chess 


01/06/93 


Charles R. Brown 

v. 

Wake County Health Department 


92 EHR 1172 


Reilly 


01/20/93 


Department of Environment, Health, & Natural Resources 

v. 
Griffin's Quick Lunch, Hubert Saunders Brown, Owner 


92 EHR 1223 


Reilly 


01/20/93 


DHR, Div of Facility Services, Child Day Care Section 

V 

Margaret Sellers 


92 DHR 1307 


Gray 


01/20/93 


Department of Environment, Health, & Natural Resources 

v. 

Jessnick Foods, Inc., d/b/a Dunkin Donuts, 

Phillip Grant, Owner 


92 EHR 1552 


Reilly 


01/20/93 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2519 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF LEE 



IN THE OFFICE OF 
ADIVnNISTRATTVE HEARINGS 
92 EHR 0550 



SANFORD FINISHING COMPANY, 

Petitioner, 



\. 



N.C. DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, 
DIVISION OF ENVIRONMENTAL MANAGEMENT. 
Respondent. 



RECOMMENDED DECISION 



This contested case was heard on December 4, 1992, in Raleigh, North Carolina before 
Administrative Law Judge, Thomas R. West. The case was tried on stipulated facts and exhibits. The 
stipulations are contained in a document entitled "Stipulations of Facts" filed on December 3, 1992. The 
"Stipulation of Facts" is incorporated into this Recommended Decision. 

APPEARANCES 

Petitioner is represented by Grady L. Shields of the law firm of Wyrick, Robbins, Yates and Ponton. 

Respondent is represented by Special Deputy Attorney General, Philip A. Telfer. 

ISSUES 

Is Petitioner eligible for reimbursement of costs associated with a clean-up of a petroleum leak from 
its commercial underground storage tanks when annual operating fees were past due and payable at the time 
the release was discovered and not paid until after the clean-up was complete. 

OFFICIAL NOTICE 

Official notice is taken of: 

1 . Chapter 143, Article 21A. Part 2A N.C. General Statutes (G.S. 143-215. 94A-143-215.94M) 

2. Chapter 1035. Session Laws - 1988 

3. Chapter 652. Session Laws - 1989 

4. Chapter 538. Session Laws - 1991 

BURDEN OF PROOF 

The burden of proof is on Petitioner to show, by the greater weight of the substantial evidence, that 
Respondent agency prejudiced Petitioner's rights and acted in one of the five ways enumerated in G.S. 150B- 



2520 



7:22 



NORTH CAROLINA REGISTER 



Eebruary 15, 1993 



CONTESTED CASE DECISIONS 






' 



23(a) by refusing to reimburse Petitioner for clean-up costs associated with the petroleum release. 

STATEMENT OF THE CASE 

The Statement of the Case contains statements of fact found from the exhibits stipulated by the parties 
as well as a restatement of certain stipulated facts. 

In February 1991, Petitioner, Sanford Finishing Company (hereafter "Sanford") hired an 
environmental consulting firm from Massachusetts to perform an environmental site assessment at its textile 
plant in Sanford. On approximately February 15, 1991, the consultant found a petroleum leak from an 
underground storage tank. Sanford reported the leaks to Respondent (hereafter "DEM") on March 12, 1991 . 
G.S. 143-215. 94E requires immediate notification. 

In May of 1991, Sanford hired another environmental consulting firm, Edgerton Environmental 
Services, Inc. of Morrisville, North Carolina, to perform a site assessment. Edgerton found that two 
underground storage tanks (18,500 gal. and 20,000 gal.) had leaked #5 Fuel Oil and that, as a result, soils 
and groundwater had been contaminated. 

Pursuant to the first assessment, Sanford had decided on February 15, 1991 not to use the two tanks 
in the future and on June 1, 1991, took the tanks out of operation. On July 8, 1991, Edgerton removed the 
underground storage tanks. 

Between June and September 1991, Edgerton also removed 393 tons of soil that were contaminated 
to a surficial depth over an area of approximately one-half acre. 

On August 14, 1991 , DEM solicited payment of the annual tank operating fees for tanks on Sanford's 
property. The fees were due for the year 1989, when Part 2 A became effective, through 1991 . DEM knew 
about Sanford's tanks only because Sanford had filed the Notice of Intent to remove the two leaking tanks with 
DEM on May 29, 1991. Sanford paid the operating fee for the three years on August 30, 1991. DEM 
accepted the payment. 

Subsequently, on March 13, 1992, some six months after cleaning up Sanford's site and some seven 
months after Sanford paid all past due operating fees, Edgerton applied on Sanford's behalf for reimbursement 
of the clean-up costs. The total cost of the clean-up was $76,720.44. The deductible is $50,000.00. 
Therefore, the sum at issue in this case is $26,720.44. 

On March 18, 1992, DEM denied the request for reimbursement. DEM cited G.S. 143-215. 94E(g) 
and stated that: 

"Based on available information, you had not registered your tanks or paid any fees until August of 
1991, whereas, evidence of the release was discovered in February or March of 1991. Because the 
annual operating fees for 1989, 1990 and 1991 due pursuant to G.S. 143-21 5. 94C had not been paid 
at the time release was discovered, the Department is required to deny your request for reimburse- 
ment from the Commercial underground Storage Tank Clean-up Fund." 

In October 1991, DEM published a document entitled "Answer to Common Trust Fund Questions." 
Among the questions is #10: 

"Can an owner or operator register the tanks and pay annual operating fees that are past due?" 

DEM answers the question: 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2521 



CONTESTED CASE DECISIONS 



"Yes. If all fees have been paid prior to the leak discovery, the clean-up is potentially eligible for 
trust fund reimbursement. If a release is discovered and there are outstanding fees, the cleanup will not be 
eligible for trust fund reimbursement. It is fraud to delay reporting the leak so you can pay outstanding fees. 
DEM will take appropriate legal action against fraud." 

On July 3, 1991, the General Assembly ratified Chapter 538 of the 1991 Session Laws. Section 4 
of Chapter 538 amended G.S. 143-215. 94C by adding subsection (e). Subsection (e) provides that an owner 
of a commercial underground storage tank who fails to pay a tank fee within thirty days of the day it is due 
shall pay a late fee of $5.00 per day up to a maximum equal to the tank fee due. Subsection (e) became 
effective on January 1, 1992 and was not effective at any of the dates relevant to this case. 

No administrative rules have been promulgated to implement Part 2A, Article 21 A of Chapter 143. 
Rules are in the process of being promulgated. Draft rules were published in the North Carolina Register on 
June 15, 1992. G.S. 143-215. 94L empowers DEM to promulgate rules to implement Article 21 A. 

ARGUMENTS 

Sanford argues that G.S. 143-215. 94E(g)(3) does not bar it from reimbursement because Sanford had 
not failed to pay an operating fee when it made its application for Fund reimbursement. Sanford also argues 
that DEM's policy of denying reimbursement if fees are past due and not paid at the time a release is 
discovered is the adoption of a rule without following the requirements of Chapter 150B of the General 
Statutes. 

DEM argues that the General Assembly's intent would be vitiated if Sanford could obtain 
reimbursement by paying fees after discovering a release. DEM replies to Sanford's second argument that 
it is not required to promulgate rules to enforce statutes which the General Assembly has, by that same statute, 
empowered it to enforce. 

ANALYSIS 

Sanford cannot be reimbursed from the Commercial Leaking Underground Storage Tank Clean-up 
Fund ("Fund"). 

The clear, unequivocal language of G.S. 143-215. 94E(g)(3) would appear to not only prevent DEM 
from reimbursing Sanford in the first place but require DEM to seek reimbursement from Sanford if DEM 
had reimbursed Sanford for the clean-up. The problem Sanford seems to have with this obvious and simple 
answer to the parties' dispute is that DEM has, by policy, not followed the clear, unequivocal language of 
G.S. 143-215. 94E(g)(3). 

DEM has published an interpretation of the statute stating that it can reimburse owners or operators 
who have failed to pay an annual tank fee due pursuant to G.S. 143-21 5. 94C if the fee is paid prior to the 
discovery of a leak and no fraud is involved. Sanford argues that this interpretation is the promulgation by 
DEM of a rule, as defined by G.S. 150B-2(8a), without DEM having followed the procedures for rulemaking 
in Article 2 of Chapter 150B. 

Sanford's argument has merit. A "rule" is a statement of general applicability that interprets an 
enactment of the General Assembly. G.S. 150B-2(8a) . DEM's published statement that owners can be 
reimbursed when they make late payments to the Fund prior to discovering a leak and denying reimbursement 
to owners when they make late payments to the fund after a leak is discovered is a statement of general 
applicability that interprets the statute and is a classic example of rulemaking. 

DEM argues that it is not required to promulgate rules to enforce Part 2A. Article 21 A, Chapter 143 



2522 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



of the General Statutes. DEM is correct. The Part empowers DEM to control and direct the fund. DEM 
is empowered by the Part to promulgate rules, but rules are not necessary when a statute itself empowers an 
agency. 

DEM creates a Catch 22 for itself, however. It argues that it is not necessary to promulgate rules 
to interpret G.S. 143-215. 94E to prevent reimbursement to Sanford, because the statute is clear and 
unequivocal, yet then published an interpretation of that same clear and unequivocal statute that would permit 
reimbursement if late payment were made prior to discovery of a leak and deny reimbursement if late payment 
were made after discovery of a leak. 

G.S. 143-215. 94E(g)(3) does not make such a distinction. DEM interprets the statute to create a 
distinction between the two situations. DEM has made a statement of general applicability that interprets an 
enactment of the General Assembly. DEM has promulgated an administrative rule without substantially 
complying with Article 2A of Chapter 150B. As a result, DEM's "rule" is void. 

At this point in our analysis, we are left with a statutory scheme that must be interpreted to determine 
whether DEM must reimburse Sanford. It is at this point that the rules of statutory construction argued by 
DEM become relevant. When DEM published a statement of general applicability that interpreted G.S. 143- 
215.94E(g)(3), it promulgated a rule. When this Administrative Law Judge interprets the statute, it is pursuant 
to the rules of statutory construction. 

If G.S. 143-215. 94E is read strictly and literally, no reimbursement is due Sanford. "No 
owner... shall be reimbursed... if the owner... has failed to pay an annual tank fee due pursuant to G.S. 143- 
215.94C." G.S. 143-215. 94E(g)(3) . Sanford failed to pay its 1989 fees on or before January 1, 1989 and 
its 1990 fees pursuant to a staggered schedule. Therefore, Sanford did not comply with G.S. 143-215. 94C 
and would not be entitled to reimbursement. 

If a strict, literal interpretation of a statute contravenes the purpose manifested by the Legislature, the 
reason and purpose of the law should control. In re Hardy , 294 N.C. 90, 240 S.E.2d 367(1978). A 
construction which will defeat or impair the object of the statute must be avoided if it can reasonably be done 
without violence to the legislative language. Ick 

DEM correctly argues in its brief that the intent of the General Assembly in enacting Part 2A was 
to protect the environment by helping to finance expensive ground water clean-ups with a compulsory 
insurance fund financed by the General Fund and tank fees. This purpose is made manifest by the statutes 
themselves. DEM correctly argues that the fund cannot be successful if fees are paid only after the injury is 
discovered. "If each claimant [were] allowed the luxury of waiting to see if the fund is needed prior to paying 
its fees, it would not take long for the regulated community to 'beat the system". Those who timely paid fees 
and had no release would be inequitably treated under such an application of the statutes." See "Respondent's 
Memorandum of Law" pp. 2-3. 

CONCLUSIONS OF LAW 

The result is that DEM did not err by refusing to reimburse Sanford. G.S. 143-215. 94E(g)(3) does 
not empower DEM to reimburse Sanford. The statute prohibits DEM from reimbursing Sanford. 

DEM is empowered to enforce Part 2A, Article 21A, Chapter 143 of the General Statutes and in 
doing so, is empowered to interpret the statute. But, when DEM publishes statements of general applicability 
that interpret the Part, DEM has promulgated a "rule" and must substantially comply with Article 2A of 
Chapter 150B. That failure, in this case, is immaterial to Sanford. Sanford's rights were not prejudiced 
because it had no right to reimbursement. Acceptance by DEM of the fee paid by Sanford is immaterial 
because the fee is compulsory. Sanford is charged with knowing the law. The failure of its consultant to 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2523 



CONTESTED CASE DECISIONS 



register Sanford's tanks does not insulate Sanford from its duty to do so and the consequences of failing to 
register the tanks and pay the fee. DEM had no duty to impart actual knowledge to Sanford of the 
requirements of the law. 

RECOMMENDED DECISION 

The decision by DEM to deny reimbursement to Sanford for the clean-up of its commercial, leaking, 
underground storage tanks should be affirmed. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
l50B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions and proposed findings of fact and to present written arguments to the agency. 
G.S. 150B-40(e). 

A copy of the final agency decision or order shall be served upon each party personally or by certified 
mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished 
to his attorney of record. G.S. 150B-42(a). 

The agency that will make the final decision in this contested case is the Secretary of North Carolina 
Department of Environment. Health, and Natural Resources. 

This the 19th day of January, 1993. 



Thomas R. West 
Administrative Law Judge 



2524 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF CARTERET 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

92 EHR 0727 



GOURMET CAFE, CMC. 

Petitioner, 



N.C. DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, 
Respondent. 



RECOMMENDED DECISION 



This contested case was decided by Judge Julian Mann III. based upon stipulated facts and exhibits, 
as set out below, and filed with the Office of Administrative Hearings on December 11, 1992. These 
stipulations were filed pursuant to G.S. 150B-31 and 26 NCAC 3 .0006. 



APPEARANCES 



For Petitioner: 



Mrs. Jean Lewis, pro se 

President. Gourmet Cafe, Inc. 

4050 Arendell Street 

Morehead City, North Carolina 28557 

Petitioner 



For Respondent: 



John P. Barkley 

Associate Attorney General 

North Carolina Department of Justice 

P.O. Box 629 

Raleigh. North Carolina 27602-0629 

Attorney for Respondent 

This contested case was referred to Judge Dolores O. Nesnow for a settlement conference. Although 
a settlement was not produced, the parties agreed to submit their controversy based upon stipulated facts. 

ISSUES 

1. Whether Respondent may properly suspend Petitioner's food and lodging permit for failure 
to pay the $25.00 late fee required by G.S. 130A-248(d)? 

2. Whether the Petitioner is subject to the $25.00 late fee for failure to pay the $25.00 annual 
food and lodging fee? 

EXHIBITS 



Exhibit A Petitioner's single entry cash journal 

Exhibit B Petitioner's bank statement for April 1992 

Exhibit C Petitioner's invoice from DEHNR for fee 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2525 



CONTESTED CASE DECISIONS 



Exhibit D Respondent's Notice of Intent to Suspend 

Exhibit E Respondent's inventory record of payments for Gourmet Cafe, Inc. 

STIPULATIONS 

The parties entered into the following Stipulations: 
"I. Procedural Matters 

1 . The parties agree and stipulate that all parties are properly before the Office of 
Administrative Hearings, which has jurisdiction over the parties and the subject matter of this proceeding. 

2. The parties agree and stipulate to have this matter determined on the basis of 
Stipulated Facts, including documentary evidence, and statements of position, that CALJ Mann will use to 
determine Conclusions of Law and a Recommendation as part of his Recommended Decision. The parties 
agree and stipulate that the Stipulated Facts and documentary evidence presented in this document represent 
the testimony and evidence that would be presented by each party as part of a contested case hearing, and that 
the stipulations are to introduction of the evidence and not to the positions asserted by the parties. 

3. The parties agree and stipulate that no contested case hearing will be held in this 
matter and the Recommended Decision will be made as described in paragraph 2 above. 

II. Stipulated Facts 

In addition to the other stipulations contained herein, the parties agree and stipulate to the introduction 
of the following facts: 

Petitioner's Facts 

1. Gourmet Cafe, Inc. bookkeeping is done by hand in-house. 

2. A combination single entry cash journal and check register is used for record keeping. 

3. Check number, date written and payee are listed on this journal. 

4. On the date, April 23, 1992, checks numbered 4643 to 4647 were written. Three 
of these five checks were for State fees to be mailed to Raleigh. Check number 4646 was written to DEHNR 
for $25.00 for the Health Department fee. A copy of my journal showing these check numbers is enclosed. 

5. There is no mailbox convenient to the cafe, so it is my custom and practice to drive 
to the Post Office to mail letters. 

6. In this particular case, I had to drive to the bank first to exchange check number 4643 
for a cashier's check to mail to the ABC Board, as they require. On the way back to the cafe from the bank, 
all three envelopes going to Raleigh were mailed at the Post Office. 

7. The ABC Board issued my Liquor License and I had it back in the cafe by April 30, 
1992. The NC Department of Revenue also issued my Beer and Wine License on April 30th. 

8. My bank statement dated 4/30/92 (copy enclosed) shows check number 4643 (the 
ABC Board) cleared the bank on 4/24. That is because it was after 2:00 on 4/23 that I drove to the bank to 
get the cashier's check as noted in Item 6. Check number 4645 (NC Dept. of Revenue) cleared my bank on 



2526 7:22 NORTH CAROLINA REGISTER Februarx IS, 1993 



CONTESTED CASE DECISIONS 



4/30. All of this was completed prior to the May date given as the late date for the DEHNR fee. Check 
number 4646 to DEHNR is still outstanding on my bank statement. A copy of the check stub and my half 
of the statement with my notations of payment are enclosed. 

9. See attached Petitioner's Exhibits A, B & C. 

Respondent's Facts 

1. Pursuant to G.S. 130A-248(d), the Environmental Health Services Section billed 
Gourmet Cafe, Inc., a duly permitted facility, on March 25, 1992 for the statutory annual food and lodging 
fee of $25.00 for the fiscal year ending June 30, 1992. The Environmental Health Services Section did not 
receive payment within the statutory 45 day payment period. A second invoice was mailed on May 9, 1992, 
for the statutory annual fee of $25.00, plus the additional $25.00 late payment fee authorized by the statute. 

2. Notice of Intent to Suspend was issued and mailed by certified mail to Gourmet Cafe, 
Inc. on June 5, 1992, for failure to pay the $25.00 annual fee and the $25.00 late payment fee. A true and 
accurate copy of the Notice is attached hereto. 

3. On August 18, 1992, Ms. Elizabeth Fuller called the ABC Commission to determine 
if a check for the Food and Lodging fee had been inadvertently forwarded to that agency with the checks for 
Mrs. Lewis's ABC fees. The ABC Commission did not have the check for the Food and Lodging fee and 
stated that the ABC Commission could not deposit a check made out to another agency. 

4. The Department bills 21 ,296 facilities for the Food and Lodging fee. In Fiscal year 
1991-92, 2,140 of those facilities have been required to pay a late fee of $25.00. Approximately five 
percent, or approximately 107 facilities, have claimed that the money for the food and Lodging fee had been 
mailed prior to the deadline for the late fee. All of these facilities have been required to pay the late fee. 

5. See attached Respondent's Exhibits D & E." 

Based upon the foregoing Stipulations, documentary evidence and pleadings contained in the file, the 
undersigned makes the following: 

FINDINGS OF FACT 

1 . The Office of Administrative Hearings has jurisdiction over the parties and the subject matter 
of this contested case pursuant to Chapters 130A and 150B of the North Carolina General Statutes. 

2. Gourmet Cafe, Inc. bookkeeping is done by hand in-house. (Exhibit A) 

3. A combination single entry cash journal and check register is used for record keeping. 
(Exhibit A) 

4. Check number, date written and payee are listed on this journal. (Exhibit A) 

5. On April 23, 1992, checks numbered 4643 to 4647 were written. Three of these five checks 
were for State fees to be mailed to Raleigh. Check number 4646 was written to DEHNR for $25.00 for the 
Health Department fee. (Exhibits A and B) 

6. There is no mailbox convenient to the cafe, so it is the Petitioner's custom and practice to 
drive to the Post Office to mail letters. (April 23, 1992) 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2527 



CONTESTED CASE DECISIONS 



7. In this particular case, Petitioner drove to the bank first to exchange check number 4643 for 
a cashier's check to mail to the ABC Board, as they require. On the way back to the cafe from the bank, all 
three envelopes going to Raleigh were mailed at the Post Office. 

8. Petitioner mailed check #4646 to Respondent on April 23. 1992, at the address on Exhibit 
C within the renewal period. 

9. The ABC Board issued Petitioner's Liquor License and it was returned to the Petitioner by 
April 30, 1992. The NC Department of Revenue also issued Petitioner's Beer and Wine License on April 
30th. 

10. Petitioner's bank statement dated 4/30/92 (Petitioner's Exhibit B) shows that check number 
4643 (the ABC Board) cleared the bank on 4/24. Check number 4645 (NC Dept. of Revenue) cleared 
Petitioner's bank on 4/30/92. All of this was completed prior to the May date given as the late date for the 
DEHNR fee. Check number 4646 to DEHNR is still outstanding. A copy of the check stub and half of the 
statement with notations of payment are contained on Exhibit C. Exhibit C a handwritten notation of the 
"Date Paid: 4/23/92" and "Check Number: 4646" as well as the handwritten notation on check stub #004646 
"DEHNR Food & Lodging Fees Unit 25." 

11. Pursuant to G.S. 130A-248(d), Respondent billed Petitioner Gourmet Cafe, Inc., a duly 
permitted facility, on March 25, 1992 for the statutory annual food and lodging fee of $25.00 for the fiscal 
year ending June 30, 1992. The Respondent did not receive check #4646 within the statutory 45 day payment 
period. A second invoice was mailed on May 9, 1992, for the statutory annual fee of $25.00, plus the 
additional $25.00 late payment fee authorized by the statute. 

12. Notice of Intent to Suspend was issued and mailed by certified mail to Petitioner on June 5, 
1992. for failure to pay the $25.00 annual fee and the $25.00 late payment fee. (Exhibit D) 

13. On August 18, 1992, Respondent's Agent, Ms. Elizabeth Fuller called the ABC Commission 
to determine if a check for the Food and Lodging fee had been inadvertently forwarded to that agency with 
the checks for Petitioner's ABC fees. The ABC Commission did not have the check for the Food and Lodging 
fee and stated that the ABC Commission could not deposit a check made out to another agency. 

14. The Respondent bills 21,296 facilities for the Food and Lodging fee. In Fiscal year 1991-92, 
2,140 of those facilities have been required to pay a late fee of $25.00. Approximately five percent, or 
approximately 107 facilities, have claimed that the money for the Food and Lodging fee had been mailed prior 
to the deadline for the late fee. All of these facilities have been required to pay the late fee. 

15. Petitioner's tender of a replacement check for $25.00 was not accepted by Respondent to 
replace the lost $25.00 annual renewal check. 

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The Office of Administrative Hearings has jurisdiction over the person and subject matter of 
this contested case pursuant to Chapters 130A and 150B of the North Carolina General Statutes. 

2. Petitioner's business record indicates that check #4646 was written to Respondent Department, 
on April 23, 1992. in the amount of $25.00. (Exhibit A) 

3. Inasmuch as there is credible evidence that the check was written, as evidenced by Exhibit 



2528 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



A. it makes the Petitioner's (stipulated) statement credible that the check was hand delivered to the postal 
authorities, properly addressed, and mailed to Respondent on or about April 23, 1992. 

4. Petitioner's Exhibit B, (the First Citizen's Bank Statement), indicates a missing item between 
check #4645 and #4647, adding further credence to the assertion that the Petitioner's check was written and 
mailed at the same time checks #4645 and #4647 were written, but check #4646 was lost after delivery. 

5. The posting of a letter creates a presumption that the postal service will deliver the letter to 
the addressee in due course. By analogy to contract law under the traditional "mailbox rule", an acceptance 
of an offer is sufficient to create a contract at the moment the acceptance letter is mailed by the offeree. This 
continues to be a valid acceptance even in the absence of the actual receipt of the acceptance by the offeror. 

6. The question of delivery is placed in controversy by the fact that Respondent's evidence 
indicates that the check was not actually received. However, Respondent's evidence is not sufficient to 
overcome the presumption of delivery to Respondent in light of Petitioner's evidence that the check was 
personally delivered to the post office. Once delivery to the post office is established, by the greater weight 
of the evidence, the risk of loss or misdelivery falls upon the Respondent. (Again, under general principles 
of contract law, the risk of loss falls on the offeror because the offeror may stipulate the conditions for the 
delivery of the acceptance.) 

7. The question as to whether or not check #4646 was written and mailed is one of fact and not 
law. The signal facts which indicate that the check was written and delivered into the care and custody of the 
postal service are: a business journal entry indicating check #4646 was issued in sequence with other checks 
written for similar purposes with these other checks being actually received by the designated payees; 
Petitioner's bank statement showing that check #4646 was missing and not returned to First Citizen's Bank 
in due course; Petitioner's handwritten record demonstrating that check #4646 was written to Respondent on 
April 23, 1992; Petitioner's "check stub" indicating a $25.00 payment to Respondent; and Petitioner's 
(stipulated) statement that she wrote and mailed check #4646 to Respondent. 

8. Petitioner's assertion of writing and mailing the check, uncorroborated by independent 
evidence, would be insufficient to establish an irrebuttable presumption of delivery. However, the coupling 
of Petitioner's assertion of mailing with the other corroborating evidence cited above is persuasive, credible 
and sufficient to overcome Respondent's evidence of a lack of mailing created merely by lack of receipt. 

9. For purposes of G.S. 130A-248(d), payment of the annual renewal fee was made on April 
23, 1992. Respondent's Form, Exhibit C, shows the date " paid" , (emphasis added) This is evidence of 
payment intended by Respondent to be retained by the Petitioner. Since the Petitioner cannot know the date 
the renewal check is received, the date of payment is presumed to be the date payment is tendered to the 
postal service. Respondent's own form lends credence to this interpretation of "payment." 

10. Respondent's policy of uniformly charging a late fee in all situations of lack of receipt is 
ordinarily sufficient, and Respondent is entitled to continue to rely on this general presumption except in light 
of individual facts and circumstances which negate the presumption of lack of mailing from lack of receipt. 

11. As is the case by analogy to contract law, the offeror may stipulate the authorized means of 
acceptance and receipt. Likewise, Respondent, by rule, may specify that the annual renewal must be actually 
received and that the risk of loss is on the sender. 1 



'Many professional and occupational licensing boards have provided by rule that payment is not 
deemed to have been made until the actual receipt of the annual renewal (and other fees) by the agency (See 
Title 21 of the North Carolina Administrative Code). 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2529 



CONTESTED CASE DECISIONS 



12. Respondent is not entitled to revoke Petitioner's Food and Lodging permit for failure to pay 

the annual renewal or to charge Petitioner a $25.00 late renewal fee. 



Based upon the foregoing Stipulations. Findings of Fact and Conclusions of Law. the undersigned 
makes the following: 

RECOMMENDED DECISION 

That the Respondent issue to Petitioner its Food and Lodging permit upon Petitioner's payment of the 
$25.00 annual renewal fee for 1992. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Department 
of Environment, Health, and Natural Resources. 

This the 13th day of January, 1993. 



Julian Mann III 

Chief Administrative Law Judge 



2530 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF RICHMOND 



IN THE OFFICE OF 
ADMINISTRATED HEARINGS 
92 OSP 0745 
92 OSP 0893 



RALPH STAMEY, 
Petitioner, 



NORTH CAROLINA DEPARTMENT OF 
CORRECTION, 

Respondent. 



RECOMMENDED DECISION 



The appeal of Ralph Stamey, an employee of the North Carolina Department of Correction, was heard 
by Fred Gilbert Morrison Jr., Senior Administrative Law Judge, Office of Administrative Hearings, on 
November 23-25, 1992, in High Point, North Carolina, and December 1, 1992, in Raleigh. 

APPEARANCES 

Edmond W. Caldwell, Jr. 
Attorney at Law 
Raleigh, North Carolina 

Deborah L. McSwain 
Associate Attorney General 
LaVee H. Jackson 
Assistant Attorney General 
NC Department of Justice 
Raleigh, North Carolina 

ISSUES 



FOR THE PETITIONER: 



FOR THE RESPONDENT: 



1. Whether the Respondent had just cause to demote Petitioner for unacceptable personal conduct. 

2. Whether Petitioner was the victim of illegal racial discrimination in the disciplinary process. 

OPINION OF THE ADMINISTRATIVE LAW JUDGE 

Based on competent evidence admitted at the hearing, the Administrative Law Judge makes the 
following: 

FLNTJINGS OF FACT 

1 . Petitioner Ralph Stamey has worked continuously for the Respondent North Carolina Department of 

Correction since September 20, 1971. He has served at various prison units across the State as a 
Correctional Officer, Lieutenant, Captain, Assistant Superintendent, Superintendent, and Associate 
Warden. 



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2531 



CONTESTED CASE DECISIONS 



2. During his tenure, the Petitioner has not been counseled or disciplined for any job performance or 
personal conduct deficiencies. 

3. On April 28. 1991. the Petitioner was assigned as the Assistant Superintendent for Brown Creek 
Correctional Institution (BCCI) in Anson County. Steve Boyles was designated as the Superintendent 
for BCCI, a new prison built to house 400 inmates with a staff of 278. 

4. Boyles and Stamey had known each other since their days as Correctional Officers at Western 
Correctional Center in the early 1970s. They worked together well in forming a staff at BCCI. They 
are white males. 

5. In August of 1991 Petitioner and Superintendent Boyles decided that Gaye Kelly and Wanda Burr 
would be hired to serve as their respective secretaries. Stamey was well pleased with Ms. Kelly and 
Bovles had confidence in Ms. Burr. The women were eager to please them. 

6. While at work. Gaye Kelly was very outgoing, friendly, eager to please, and appeared flirtatious to 
Petitioner at times. Her personality and behavior aroused feelings of physical attraction in Petitioner. 
She was always eager to go flying with him in his plane. 

On December 12. 1991. Petitioner invited Ms. Kelly to go to lunch with him at a steakhouse in 
Wadesboro. On the return trip to BCCI, Petitioner decided to test the waters with her concerning a 
sexual relationship. He asked if she was happily married; remarked that he thought they shared a 
mutual attraction for one another: stated that any advances from her would be welcomed: and offered 
his affections. Ms. Kelly politely declined Petitioner's offer. 

8. On December 13. 1991, Ms. Kelly rode with Petitioner to a Captains' meeting in Ansonville. Mr. 
Stamey asked her whether she had thought any more about their conversation on December 12th. 
Ms. Kelly indicated that she was not interested in pursuing the matter. 

9. On December 16. 1991, Petitioner left a thank you card on Ms. Kelly's desk with a notation that she 
was a great asset to BCCI. He had previously left a smiley face on one memo sheet and the initials 
"GKRS" on another with notation "In alphabetical order." 

10. Following their conversation on December 13th. Petitioner reflected upon the matter and decided he 
wanted to be sure their working relationship was not damaged. A day or so later, around 7:30 p.m.. 
he called Ms. Kelly at home to tell her he had thought about his prior comments and wanted to be 
sure things were okay between them. Ms. Kelly responded that everything was fine at work. 
Following this phone conversation, the Petitioner made no further sexual advances or explorations 
toward Ms. Gaye Kelly. Interactions between them returned to a normal working relationship. 
Petitioner was extremely nice to her and went out of his way to compliment her. She continued to 
sit with him at official meetings, accepted a Christmas gift from him. and gave him a ride late one 
evening in January. 1992. to pick up his car at a garage several miles from BCCI. 

11. In a performance review on Friday. February 7. 1992. Mr. Stamey gave Ms. Kellv an overall 
summary rating of "very good performance." He noted her extremelv pleasing personalitv and 
suggested that she hide her feelings at times. Superintendent Boyles concurred in this evaluation. 
Ms. Kelly signed her name without making comments in the employee's section. 

12. Early in the week of February 10. 1992. Petitioner met with Mr. Boyles to convey his concerns that 
Ms. Kelly and Captain Christopher Brown of the staff appeared to be developing much more than a 
close professional relationship. Stamey had observed Ms. Kelly sitting in a fetal position in her chair 
with Brown kneeling in front of her. Ms. Kelly seemed overly friendly to Brown and brought him 



2532 7:22 NORTH CAROLINA REGISTER Februan 15, 1993 



CONTESTED CASE DECISIONS 






special rice krispy treats, which others also ate. They seemed to be spending too much time together. 
Mr. Boyles allowed Petitioner to discuss this with them, but cautioned him not to accuse them of any 
wrongdoing. 

13. On February 12, 1992, in separate conferences. Petitioner shared his concerns with Gaye Kelly and 
Christopher Brown. He did not accuse them of having an affair, but suggested that they modify their 
behavior toward one another around the office. This angered Brown and Kelly. Stamey, Brown and 
Kelly worked together without incident on February 13th. 

14. On the evening of February 13, 1992, Ms. Kelly called Captain Brown at home (even though she had 
thought it improper for Petitioner to call her at home in December), to discuss their respective 
conferences with Petitioner and how to respond. 

15. On the morning of February 14, 1992, Ms. Kelly went to Superintendent Boyles and accused 
Petitioner of sexual harassment. She related Petitioner's conversations with her on December 12th 
and 13th and stated her belief that Mr. Stamey was now retaliating against her for rejecting his 
overtures. Mr. Boyles had her prepare a written statement outlining her allegations. 

16. Following his meeting with Ms. Kelly on February 14th, Steve Boyles interviewed Captain Brown 
who proceeded to accuse Petitioner of discrimination against minorities and other improper 
management activities. Boyles had Brown prepare a written statement delineating his allegations. 
He also spoke with his secretary, Wanda Burr, and got a statement from her corroborating Ms. 
Kelly's allegations against Petitioner. 

17. Superintendent Boyles informed Petitioner on February 14, 1992, that he was under investigation. 
He instructed Petitioner to not interfere with this investigation. He did not interview Petitioner 
concerning the allegations against him by Brown and Kelly. He did not share the statements from 
Brown, Burr and Kelly with Petitioner. He did not request a response from Mr. Stamey concerning 
their allegations. 

18. After collecting all the statements on February 14th, Mr. Boyles prepared and presented a letter to 
Petitioner informing him that he was being reassigned to new duties at the South Piedmont Area 
Office, which would require two hours driving time both to and from. The letter said that Petitioner 
was relieved of all duties at BCCI for the duration of an investigation relating to sexual harassment, 
intimidation of staff and insubordination (with no specifics about any allegations against him). He 
was instructed to report to the Area Office on February 17th at 9:00 AM at which time his new duties 
would be described to him. Boyles also ordered Petitioner not to return to BCCI without the 
Superintendent's expressed permission. Petitioner reported as ordered on February 17th. His new 
duties were working under the Program Director by responding to letters from inmates. Other 
employees performing such duties were in pay grades lower than Petitioner's. 

19. Al Fullwood. a black male, was serving as an Equal Employment Opportunity Officer with the 
Respondent on February 20, 1992. He was appointed to investigate the allegations made against 
Petitioner. He and two others interviewed Petitioner on February 20th. For the first time, Mr. 
Stamey learned that in addition to allegations of sexual harassment, he had been accused of racial 
discrimination. He was evasive and denied all allegations of sexual harassment implied from verbal 
questions by investigators. They had interviewed Ms. Kelly on February 19th. No documents were 
shown to Petitioner about her allegations. 

20. After reflecting upon his responses to questions on February 20th, Mr. Stamey called Mr. Fullwood 
on February 25th to request another session that day at which he said he might well have sexually 
harassed Ms. Kelly by his comments to her on December 12 and 13, 1991 . He admitted that he had 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2533 



CONTESTED CASE DECISIONS 



not been completely open on February 20th due to confusion and stress. 

21. Mr. Fullwood filed a report on March 12, 1992, stating that conclusive evidence substantiated the 
charges of sexual harassment. In an addendum, Mr. Fullwood recommended that Respondent's 
officials take the issue of Petitioner's views toward minorities into consideration when determining 
what disciplinary action to impose. He had been told to investigate racial discrimination allegations 
against Petitioner. 

22. On March 20, 1992. Respondent issued a final written warning dated March 19th to Petitioner for 
unacceptable personal conduct involving sexual harassment and providing false and/or misleading 
information during an official investigation. No specifics were given in this letter. Petitioner was 
further informed that a recommendation for demotion was under consideration. 

23. By letter dated March 24, 1992, Respondent informed Petitioner that it was being recommended that 
he be demoted from the position of Assistant Superintendent for Custody and Operations II at BCCI, 
a position he had not been performing since February 17, 1992. The reasons given were "evidence 
that shows you engaged in sexual harassment of an employee at BCCI and that you gave false and 
misleading information during an official investigation." 

24. By letter dated March 25, 1992, Respondent notified Petitioner that effective April 1, 1992, he was 
demoted to the position of Correctional Officer at Harnett Correctional Institution. The reasons given 
were "personal conduct violations committed by you involving sexual harassment and providing false 
and/or misleading information during an official investigation." No specifics, such as names, dates, 
places, words spoken, persons offended, words denied or admitted, were provided in this letter. 

25. Petitioner appealed his demotion through the Respondent's internal grievance procedure. 

26. Respondent's Employee Relations Committee heard Petitioner's appeal on June 4, 1992. and 
concluded that unacceptable personal conduct had occurred. This conclusion was based upon the fact 
that Stamey's perception concerning Brown and Kelly was unfounded and did not give cause for 
suspicion. The Committee recommended that the disciplinary action be upheld because it had 
determined that Petitioner had created a hostile work environment for Ms. Kelly after she rejected 
his sexual advances by confronting her about her relationship with Captain Brown. 

27. By letter dated June 26, 1992, Respondent informed Petitioner that the Secretary of Correction 
concurred in the Committee's recommendation that his demotion be upheld, but ordered that the Final 
Written Warning be expunged from his personnel record. This letter did not state the specific reasons 
for the decisions by the Committee or the Secretary. 

28. The Secretary of Correction had determined that demotion and final written warning are two distinct 
disciplinary actions and that Petitioner's case merited one - demotion. No reasons were given for this 
decision to choose demotion over final written warning. 

29. Petitioner filed petitions requesting contested case hearings alleging lack of just cause for his demotion 
and illegal racial discrimination against him. 

30. On November 17. 1992. just prior to this hearing. Respondent sent Petitioner a revised demotion 
letter which set forth in specific detail the reasons for his demotion. This letter did not mention the 
Committee's hostile work environment conclusion or the Secretary's decision with his reasoning for 
demotion over warning. 

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: 



2534 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 






CONCLUSIONS OF LAW 

1. Petitioner was a permanent State employee at the time of his demotion. Because he has alleged that 
Respondent lacked just cause and discriminated against him, the Office of Administrative Hearings 
has jurisdiction to hear his appeal and issue a recommendation to the State Personnel Commission, 
which shall make the final decision in this matter. 

2. G.S. 126-35 provides, in part, "that no permanent employee subject to the State Personnel Act shall 
be demoted for disciplinary reasons, except for just cause." Where just cause is an issue, the 
Respondent bears the ultimate burden of persuasion. A just cause issue carries both substantive and 
procedural questions. Just causes for demoting fall into two categories: (1) causes relating to 
performance of duties, and (2) causes relating to personal conduct detrimental to state service -- no 
prior warnings are required under (2). Also, the statute provides that "the employee shall, before the 
action is taken , be furnished with a statement in writing setting forth in numerical order the specific 
acts or omissions that are the reasons for the disciplinary action." 

3. While Respondent had grounds to warn Petitioner, it has not met its burden of showing procedural 
just cause for demoting Ralph Stamey on February 14. 1992, for unacceptable personal conduct, 
because it did not comply with G.S. 126-35 in any letter until November 17, 1992, nine months later. 
For all intents and purposes, Ralph Stamey was punitively demoted on February 14, 1992, without 
the benefit of established rights afforded permanent State employees. Before being expelled from 
his position, barred from BCCI, and ordered to drive 4 hours per day for lower duties, he was 
entitled to know the specific reasons why. The Supreme Court of the United States has mandated this 
as has the General Assembly. Prior to the action on February 14th, Mr. Stamey was entitled to 
written notice of the charges against him, an explanation of Respondent's evidence, and an 
opportunity to present his side of the story. The following investigation was also unfair and tainted 
by the new issue of illegal discrimination which had never been mentioned until he faced his 
inquisitors. He wasn't properly notified. 

4. The Petitioner has not carried his burden of proving that he was the victim of illegal discrimination. 

Based on the foregoing Findings of Fact and Conclusions of Law, the Administrative Law Judge 
makes the following: 

RECOMMENDED DECISION 

That Petitioner's demotion be reversed and he be reinstated to his former position with back pay, 
other benefits and attorney's fees, with a final written warning in his file for unacceptable personal conduct. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings. P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2535 



CONTESTED CASE DECISIONS 



furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the State Personnel Commission. 
This the 28th day of January, 1993. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



2536 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

92 INS 0747 
92 INS 0825 
92 INS 0880 



CAROLINA MEDICORP, INC., et al 
CLEVELAND MEMORIAL HOSPITAL. INC. 
MOORE REGIONAL HOSPITAL, et al 
Petitioners, 



et al 



BOARD OF TRUSTEES OF THE TEACHERS' 
AND STATE EMPLOYEES' COMPREHENSrVE 
MAJOR MEDICAL PLAN AND 
DAVID G. DEVRIES, 
Respondents. 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned administrative law judge on December 7 and 
8, 1992, in Raleigh upon the Petitioners' and Respondents' Motions for Summary Judgment. The Petitioners 
and Respondents filed Responses to the Memoranda in Support of Summary Judgment. Numerous affidavits, 
admissions, answers to interrogatories, and depositions were filed by both parties. Supplemental Memoranda 
were requested and oral argument was held on January 28, 1993. 

I. 

The Petitioners' first argument in support of their Motion for Summary Judgment is that the 
Respondents, by deciding to impose a flat discount on every hospital, failed to comply with G.S. 135-40.4. 

That statute, enacted in 1985, states that the Respondents "may begin the process of negotiating 
prospective rates of charges that are to be allowed under the Plan with preferred providers of institutional and 
professional medical care and services." The Respondents, "under the provisions of G.S. 135-39. 5( 12). (shall) 
pursue such preferred provider contracts on a timely basis and shall make monthly reports . . . ." G.S. 135- 
39.5(12) authorizes the Respondents to determine basis of payments to health care providers, including 
payments in accordance with G.S. 58-50-55. 

G.S. 58-50-55 was enacted in 1985 to authorize insurance companies to enter into preferred provider 
contracts. Subsection (d) restricts the percentage of the reduction of payments to providers not participating 
in a plan. This provision concerning payments was the only part of G.S. 58-50-55 that was incorporated into 
the Comprehensive Major Medical Plan. However, since G.S. 135-40.4 and 58-50-55, as well as 58-50-50, 
were enacted in the same year, the definition of "preferred provider" contained in the last statute is helpful 
to understanding the same term as it is used in the first statute. 

G.S. 58-50-50 defines "preferred provider" in part to mean "a person, who has contracted for, or a 
provider of health care services who has agreed to accept special reimbursement or other terms for health care 
services from any person." 



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February 15, 1993 



2537 



CONTESTED CASE DECISIONS 



The Respondents undertook to establish in 1991 a network of preferred providers to reduce the cost 
of health care for the current biennium. The Respondents had hoped to utilize the Blue Cross Blue Shield 
preferred provider network with sixty of the hospitals in the State. However, the other fifty-seven hospitals 
objected and the Respondents decided to obtain flat 5% and 8% discounts from all hospitals. All 117 
hospitals, including Petitioners, contracted with the Respondents to accept special reimbursement. 

The Respondents announced their intentions and held informational meetings. The Respondents added 
an Option 2 to their proposal but otherwise did not modify the proposal. The Petitioners first contend that 
the Respondents did not engage in "a process of negotiating." The Respondents, due to the size of the Plan, 
were able to convince all 117 hospitals to participate. The Petitioners question whether the Respondents 
obtained "prospective rates of charges." The discounts obtained did reduce the individual hospital's rates and 
the reduction was prospective. The Petitioners contend that the Respondents' agreement with all the hospitals 
negates any of them from being preferred providers. However, the definition in G.S. 58-50-50 only requires 
an agreement on "special reimbursement or other terms." Exclusivity is not required. Whether the 
Respondents could have incorporated additional terms into their contracts with the preferred providers is not 
relevant since what the Respondents included complied with the language of G.S. 135-40.4 and the language 
of G.S. 135-40.4 does not mandate the additional terms. 

Finally, the Respondents also complied with G.S. 1 35-39. 4A which requires that any contract 
negotiations with a preferred provider "be done only after consultation with the Committee on Employee 
Hospital and Medical Benefits." On May 8, 1992, prior to the execution of the contracts, the Respondents 
notified the Committee by certified mail of the provisions of the proposed contracts. Notification of and 
opportunity to respond by the Committee satisfied the consultation requirement of the statute. 

II. 

The Petitioners' second argument is that the Respondents, in signing contracts with 1 17 hospitals, did 
not comply with Chapter 143. Article 3, entitled "Purchases and Contracts." 

G.S. 143-49(3) authorizes the Secretary of Administration to "purchase or to contract for, by sealed, 
competitive bidding or other suitable means, all contractual services and needs of State government." 
Alternatively, the Secretary may "authorize any department, institution or agency to purchase or contract for 
such services." Therefore, the Secretary or an authorized department may purchase or contract for contractual 
services and other needs by (i) sealed, competitive bidding or (ii) other suitable means. 

One of the "other suitable means," as provided in the second paragraph of G.S. 143-49(3). is an 
award of any contract for contractual services exceeding $ 100.000 where negotiation is required. The last 
sentence of the paragraph specifically provides that negotiation is an alternative to the competitive bidding 
process. G.S. 135-40.4 explicitly requires negotiation. Respondents argue, however, that the contracts with 
the 117 hospitals did not involve "contractual services." 

"Contractual services" is defined as "work performed by an independent contractor requiring special 
knowledge, experience, expertise or similar capabilities." The term does not include contracts primarily for 
the acquisition or rental of equipment, materials and supplies. The contracts between the Comprehensive 
Major Medical Plan and each of the 117 hospitals state that "(t)he Hospital will act as an independent 
contractor" and "(t)he Hospital agrees to accept as reimbursement for services provided to Plan members an 
additional discount" or "reimbursement on a per case basis." The "work" performed by the hospitals, 
including maternity cases, psychiatric cases, open heart surgery cases and neurosurgery cases, does require 
"special knowledge, experience, expertise or similar capabilities." 

Respondents argue that the 1 17 contracts are not "contractual services" under the statute because Plan 
members select the hospitals and services are provided to plan members. First, the Respondents contracted 



2538 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



with and selected the hospitals. Second, the Respondents compel Plan members to utilize the hospitals by 
penalizing members with an additional "twenty percent (20%) coinsurance rate up to five thousand dollars 
($5,000) per fiscal year per covered individual." See G.S. 135-40. 8(d). Third, it is the "State of North 
Carolina (that) undertakes to make available (the Plan) exclusively for the benefit of its employees, retired 
employees and certain of their dependents which will pay benefits in accordance with the terms hereof." This 
language may have supported Respondents' argument that Plan members select the hospitals and services 
which are provided to the members if it was not for the implementation of the network of preferred providers 
under G.S. 135-40.4. The Respondents shifted from only paying benefits (i.e. reimbursing providers) to also 
establishing a network of preferred providers (i.e. contracting with preferred providers). G.S. 135-40.4 
authorized this shift; however, the shift resulted in 117 contracts for contractual services under G.S. 143- 
49(3). 

The procedure for sealed, competitive bidding is set forth in G.S. 143-52. The procedure for 
contractual services and further definition of contractual services are set forth in 1 NCAC 5D .0300 through 
.0500. See G.S. 143-53(3) and (5). There are no "other suitable means" provided for in the statutes or rules 
which are applicable to this contested case. Therefore, the Respondents were required to utilize one of the 
two alternatives in contracting with the 1 17 hospitals. 

1 NCAC 5D .0302 contains nine exemptions from the procedures for service contracts. Only the 
seventh and ninth ones are arguably applicable to this case. The seventh exemption is for "personal services 
provided by a professional individual on a temporary or occasional basis." Given the size and scope of the 
117 contracts, these contracts are neither temporary or occasional. Furthermore, the use of the word 
"individual" and the illustrations given suggest that a hospital or 117 hospitals are not covered by this 
exemption. 

The ninth exemption is "any other service designated to be exempt by the State Purchasing Officer, 
or his authorized representative." The Respondents rely upon this exemption. The State Purchasing Officer 
wrote the Respondents on May 13, 1992: 

Per your request, we have reviewed the materials which you have submitted to us regarding 
Preferred Provider contracts. 

It is our opinion that these contracts do not constitute "contractual services" as defined in 
Article 3 of Chapter 143 of the General Statutes of North Carolina and the rules adopted 
pursuant thereto. Therefore, pursuant to the provisions of 1 NCAC 5D .0302(9), these 
contracts are hereby declared to be exempt. 

As discussed above, the 117 contracts are service contracts under G.S. 143-49(3) and are not 
exempted by 1 NCAC 5D .0302(1 )-(8). The last exemption applies to "any other service designated to be 
exempt by the State Purchasing Officer, or his authorized representative." G.S. 143-53(3) authorizes the 
Secretary of Administration to define further by rule the definition of "contractual services" in G.S. 143-49(3). 
The Secretary employed this authority in 1 NCAC 5D .0302 by defining what was not covered by the term. 
However, another statute, G.S. 150B-19(6), states: 

An agency may not adopt a rule that does one or more of the following: 

(6) Allows the agency to waive or modify a requirement set in a rule unless a rule 
establishes specific guidelines the agency must follow in determining whether to waive or 
modify the rule. 

The State Purchasing Officer in his May 15, 1992, memorandum modified the exemptions contained 
in 1 NCAC 5D .0302 by adding another exemption. The Rule authorizing the exemption, i.e. subdivision 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2539 



CONTESTED CASE DECISIONS 



(9) of .0302, contains no specific guidelines which the agency must follow in designating additional 
exemptions. The rule is invalid under G.S. 150B-19(6). Therefore, the reliance by the Respondents on the 
State Purchasing Officer's declaration of May 13. 1992. resulted in the Respondents failure to act as required 
by law in that the Respondents failed to contract with the 117 hospitals as required by G.S. 143-49(3) and 1 
NCAC 5D .0300 - .0500 where the amount of the contracts exceeded $100,000. 

Since the Respondents contracted for services contrary to Article 3 of G.S. Chapter 143, the contracts 
entered by the Respondents with the 1 17 hospitals may be declared void and of no effect in the proper case. 
See G.S. 143-58. 

The Respondents did not violate G.S. 143-59 by failing to "give preference as far as may be 
practicable to" North Carolina services. In truth, the Respondents contracted only with North Carolina 
hospitals because North Carolina is where most State employees, retired employees and their dependents 
reside. Not contracting with an out-of-state hospital is not failing to give a preference to North Carolina 
hospitals under the meaning of the statute. 

III. 

The Petitioners' third argument is that the Respondents failed to adopt the flat discount requirement 
as a rule under Article 2A of G.S. Chapter 150B. G.S. 150B-2(8a) defines a rule to be "any agencv 
regulation, standard or statement of general applicability that implements or interprets an enactment of the 
General Assembly ... or that describes the procedure or practice requirements of an agency." A statute 
(G.S. Chapter 135) did authorize the Respondents to negotiate the contracts and another statute (G.S. Chapter 
143) did establish procedural requirements concerning negotiating the contracts. However, the contracts which 
the Respondents negotiated with the 117 hospitals did not implement or interpret a statute. Similarly, the 
contracts did not describe the procedures or practices of the Respondents. Rather, the contracts were merely 
the means by which to purchase services. Therefore, the flat discount requirements do not constitute a rule 
under Article 2A of G.S. Chapter 150B. 

IV. 

The Respondents' first argument in support of their Motion for Summary Judgment is that the 
Petitioners (other than Elizabeth Matheson-Smith. Reba J. Smith and Dina L. Braddy) are estopped from 
denying the validity of the contracts which they signed and from which they are currently receiving benefits. 
The contracts which the Petitioners signed contained no provisions reserving the Petitioners the right to contest 
the flat discounts provisions. Rather. Paragraph #9 thereof provides that "(t)his Agreement . . . represent(s) 
the entire Agreement between the parties and supersede(s) all prior oral or written statements or agreements." 
Nothing in the deposition of David G. DeVries is to the contrary. 

In Capital Outdoor Advertising. Inc. v. Harper . 7 NC App 501. 172 SE 2d 793. 795 (1970). the 
Court stated: 

There have been few cases decided which involve the issue raised by the appellant; however, 
it is settled law in North Carolina that a party will not be allowed to accept benefits which 
arise from certain terms of a contract and at the same time deny the effect of other terms of 
the same agreement. 

The Petitioners argue that estoppel by benefit does not apply to void contracts. However, in Brooks 
v. Hackney . 329 NC 166. 404 SE 2d 854 (1991), the Court applied estoppel by benefit to a deed that was 
void for indefiniteness. The Court quoted Harper . The plaintiffs made payments on the land and the 
defendants were precluded from selling or renting the property. The defendants relied upon the deed and the 
plaintiff was estopped to deny the validity of the agreement. 



2540 7:22 NORTH CAROLINA REGISTER February 15, 1993 



CONTESTED CASE DECISIONS 



The Petitioners respond that the Respondents have not relied upon the representations or conduct of 
the Petitioners. State Highway Commission y^ Thornton , 271 NC 227, 156 SE 2d 248 (1967) is cited. That 
case was discussing equitable estoppel whose focus is reliance by the party asserting the defense on 
representation or conduct of the other party. Estoppel by benefit focuses upon the benefit received by the 
party against whom it is asserted. Estoppel by benefit is applicable to this case. Petitioner received a benefit, 
i.e. participation in the Plan's network of preferred providers. As in Brooks v^ Hackney , supra , the 
Respondents relied upon the validity of the contract. 

In its Supplemental Authority on Summary Judgment Issue, the Petitioners cite a line of cases where 
the governmental entity is not estopped from attacking the validity of a contract. Those cases have held that 
public policy dictates that the governmental entity is bound by the law and therefore the agency can challenge 
the ultra vires actions of its officials. In this case, private parties are challenging a contract under which they 
benefited. The governmental entity is defending, not challenging, the validity of its actions. The public 
policy concerns found in Petitioners' line of cases are absent here where the agency contends that its actions 
were proper. Therefore, estoppel by benefit applies against the Petitioners (other than Elizabeth Matheson- 
Smith, Reba J. Smith and Dina L. Braddy). Finally, the cases applying former G.S. 52-6 are suj generis and 
are not controlling. 



The question becomes whether the rights of Petitioners Elizabeth Matheson-Smith, Reba J. Smith and 
Dina L. Braddy have been substantially prejudiced by the actions of the Respondents as alleged in the 
Petitions. The allegations concern loss of freedom of choice of hospitals, financial coercion, higher 
copayments for some services, finding new physicians, and lack of adequate notice of the new penalties. In 
other words, do the allegations show that these Petitioners either directly or indirectly have been substantially 
affected in their person or property? See G.S. 150B-23(a) and definition of "Person aggrieved" in G.S. 150B- 
2(6). 

As recognized in Goss v^ Lopez , 419 US 565, 572-573 (1975). "(p)rotected interests in property are 
normally not created by the Constitution. Rather, they are created and their dimensions are defined by an 
independent source such as state statutes or rules entitling the citizen to certain benefits." These Petitioners 
contend that they have been harmed by the Respondents' failure to minimize cost and the resulting reduction 
in benefits. The undersigned concluded in Part I that the Respondents complied with the contested provisions 
of G.S. Chapter 135. The Petitioners, in their Supplemental Memorandum, point to no independent source 
in State statutes or rules providing a property right to the Petitioners in minimizing cost and avoiding reduction 
in benefits. Although, as beneficiaries of the Plan, they are affected by the management of the Plan, such as 
attending a different hospital, obtaining a new physician, and receiving less and less benefits every year, these 
consequences are not the result of a breach of a property interest created by State statutes or rules. Therefore, 
the Petitioners have not been affected in their property. It has not been argued that the Petitioners have been 
affected in their person. 

The Petitions did not name the individual Petitioners in their capacity as "taxpayers" and therefore 
that issue is not properly presented in these cases. The individual Petitioners sued as members of the Plan. 
As concluded in Part II, the Respondents did fail to comply with the provisions of Article 3 of G.S. Chapter 
143. However, it has not been shown that this violation affected a property interest of these Petitioners as 
members of the Plan. 

The rights of Petitioners Elizabeth Matheson-Smith, Reba J. Smith and Dina L. Braddy have not been 
substantially prejudiced by the actions of the Respondents as alleged in the Petitions and therefore they lack 
standing to initiate these contested cases. 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2541 



CONTESTED CASE DECISIONS 



VI. 

The Respondents have not violated the Petitioners rights under the Due Process Clause or the Law I 

of the Land Clause for the reasons stated in the Respondent's Memorandum in Support of Motion for 
Summary Judgment. There also has been no unlawful delegation. 

SUMMARY JUDGMENT 

It is therefore recommended that summary judgment under Rule 56, Rules of Civil Procedure, be 
entered in favor of the Respondents because there is no genuine issue as to any material fact and the 
Respondents are entitled to entry of judgment as a matter of law. 

RECOMMENDED DECISION 

It is recommended that the Petitions be dismissed. 

ORDER 

It is hereby ORDERED that the agency serve a copy of the Final Decision on the Office of 
Administrative Hearings. P.O. Drawer 27447. Raleigh. N.C. 2761 1-7447. in accordance with North Carolina 
General Statutes 150B-36(b). 

NOTICE 

The final decision in this contested case shall be made by the Board of Trustees of the Teachers' and 
State Employees' Comprehensive Major Medical Plan. Each party has the right to file exceptions to the 
recommended decision and to present written arguments on the decision to this agency. 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

This the 29th day of January, 1993. 



Robert Roosevelt Reilly Jr. 
Administrative Law Judge 



2542 7:22 NORTH CAROLINA REGISTER February 15, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. Tlie other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



Architecture 2 

Auctioneers 4 

Barber Examiners 6 

Certified Public Accountant Examiners 8 

Chiropractic Examiners 10 

General Contractors 12 

Cosmetic Art Examiners 14 

Dental Examiners 16 

Dietetics/Nutrition 17 

Electrical Contractors 18 

Electrolysis 19 

Foresters 20 

Geologists 21 

Hearing Aid Dealers and Fitters 22 

Landscape Architects 26 

Landscape Contractors 28 

Marital and Family Therapy 31 

Medical Examiners 32 

Midwifery Joint Committee 33 

Mortuary Science 34 

Nursing 36 

Nursing Home Administrators 37 

Occupational Therapists 38 

Opticians 40 

Optometry 42 

Osteopathic Examination & Reg. (Repealed) 44 

Pharmacy 46 

Physical Therapy Examiners 48 
Plumbing, Heating & Fire Sprinkler Contractors 50 

Podiatry Examiners 52 

Practicing Counselors 53 

Practicing Psychologists 54 

Professional Engineers & Land Surveyors 56 

Real Estate Commission 58 

Refrigeration Examiners 60 

Sanitarian Examiners 62 

Social Work 63 
Speech & Language Pathologists & Audiologists 64 

Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



1 


Administration 


2 


Agriculture 


3 


Auditor 


4 


Economic & Community Development 


5 


Correction 


6 


Council of State 


7 


Cultural Resources 


8 


Elections 


9 


Governor 


10 


Human Resources 


11 


Insurance 


12 


Justice 


13 


Labor 


14A 


Crime Control & Public Safety 


15A 


Environment, Health, and Natural 




Resources 


16 


Public Education 


17 


Revenue 


18 


Secretary of State 


19A 


Transportation 


20 


Treasurer 


*21 


Occupational Licensing Boards 


22 


Administrative Procedures 


23 


Community Colleges 


24 


Independent Agencies 


25 


State Personnel 


26 


Administrative Hearings 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



2543 



CUMULATIVE INDEX 



Pases 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Issue 



( 



1 - 105 1 - April 

106 - 173 2 April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 July 

791 - 902 8 July 

903 - 965 9 - August 

966 - 1086 10 August 

1087 - 1 154 11 September 

1155 - 1253 12 September 

1254-1350 13 October 

1351 - 1463 14 - October 

1464 - 1640 15 November 

1641 - 1720 16 - November 

1721 - 1828 17 December 

1829 - 2059 18 December 

2060 - 2215 19 January 

2216 - 2381 20 - January 

2382 - 2484 21 February 

2485 - 2546 22 - February 



ADMINISTRATION 

Administration's Minimum Criteria. 2396 

Auxiliary Services. 4 

Environmental Policy Act. 2385 

Low-Level Radioactive Waste Management Authority, 

Motor Fleet Management Division. 794 



>39] 



AGRICULTURE 

Gasoline and Oil Inspection Board. 336 

Markets Division. 2495 

Pesticide Board. 1276 

Plant Industry. 904. 2219. 2490 

Standards Division, 2490 

Structural Pest Control Committee. 332 

Veterinary Division. 342 

CONLMERCE 

Cemetery Commission, 2398 

COMMUNITY COLLEGES 

Community Colleges, 1535 
General Provisions. 1531 
Miscellaneous Programs. 1598 



CULTURAL RESOURCES 

Archives and History. 2224 
U.S.S. Battleship Commission. 91 



I 



2544 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



CUMULATIVE INDEX 



ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629, 1467 
Community Assistance, 909, 968 
Departmental Rules, 801 
Savings Institutions Division, 1833 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health, 1199 

Coastal Management, 211, 655, 1098, 1507 

Departmental Rules, 826, 1852 

Environmental Health, 223, 2439 

Environmental Management, 190, 416, 500, 644. 830, 1013, 1487, 1856, 2086, 2308, 2438 

Governor's Waste Management Board, 564, 920, 1197 

Health: Epidemiology, 140, 1212 

Health: Personal Health, 1217 

Health Services, 52, 659, 1174, 1736, 1985, 2141 

Marine Fisheries, 530 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136, 1520, 1863, 2087 

Sedimentation Control, 920 

Vital Records, 565 

Wildlife Resources Commission, 28, 133, 408, 449, 551, 921, 1299, 1414, 1658, 1736 

Wildlife Resources Commission Proclamation, 176, 2082 

FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793, 966, 1090, 1275, 1465, 1644, 1721, 2384 

GENERAL STATUTES 

Chapter 150B, 1254, 2060 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 401, 491, 626, 791, 903, 1087, 1155, 1351, 1464, 1641, 1829, 2081, 2216, 2382, 2485 

HUMAN RESOURCES 

Aging, Division of, 121, 346 

Day Care Rules, 123 

Departmental Rules, 2496 

Economic Opportunity, 5 

Facility Services, 111, 177, 496, 634, 980, 1352, 1647, 2404 

Medical Assistance, 4, 415, 496, 816, 989, 1156, 1295, 1391, 1649, 1723, 1842, 2083, 2228 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809, 1092, 1276, 

2225 
Social Services Commission, 183, 911, 1471, 2419 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450, 576, 928, 1219 
Safety and Health Review Board, 2190 

INSURANCE 

Actuarial Services Division, 1411, 2498 

Admission Requirements, 2304 

Agent Services Division, 1410 

Consumer Services Division, 125. 1157, 2239 

Departmental Rules, 7, 1095, 1405 

Engineering and Building Codes, 19, 643 



7:22 NORTH CAROLINA REGISTER February 15, 1993 2545 



CUMULATIVE INDEX 



Financial Evaluation Division, 1162. 1849, 2242 

Fire and Rescue Services Division, 17, 1406 

Hearings Division, 124, 1096 

Life and Health Division, 22, 347, 1 167, 2300 

Market Conduct Division, 1850 

Medical Database Commission, 1650 

Property and Casualty Division, 20, 1848 

Seniors' Health Insurance Information Program. 132 



I 



JUSTICE 

Alarm Systems Licensing Board. 27. 189. 643. 919. 1414. 1486, 1732 

Criminal Information, 1097 

General Statutes Commission. 353 

Private Protective Services, 918, 1731 

Sheriffs Education and Training, 990 

State Bureau of Investigation, 188, 499, 1413 

LICENSING BOARDS 

Architecture. 1111 

Certified Public Accountant Examiners. 355 

Chiropractic Examiners. 1416 

Cosmetic Art Examiners. 360. 922, 1669. 2331. 2500 

Dietetics/Nutrition, 923 

Electrical Contractors. 1785. 2332 

Electrolysis Examiners. 69. 700. 2502 

Geologists. 1792 

Medical Examiners. 1304. 1417. 1987. 2441 

Mortuary Science. Board of. 2184 

Nursing." Board of. 232. 700. 1528. 2506 

Opticians. 1793 

Optometry, 2338 

Pharmacy, Board of. 1418 

Professional Engineers and Land Surveyors. 566 

Speech and Language and Pathologists and Audiologists, 705 

LIST OF RULES CODIFIED 

List of Rules Codified. 72. 362. 452. 584. 1671. 2352. 2508 



PUBLIC EDUCATION 

Departmental Rules, 1108 

Elementary and Secondary. 852, 1 108. 



1666 



REVENUE 

License and Excise Tax. 712 
Motor Fuels Tax, 361 

STATE PERSONNEL 

Office of State Personnel, 237, 705, 1113. 1419. 2005 



TAX REVIEW BOARD 

Orders of Tax Review. 494 

TRANSPORTATION 

Highways. Division of. 228. 856. 1062. 
Motor Vehicles. Division of, 68. 142 



1110. 1669. 1781 



I 



2546 



7:22 



NORTH CAROLINA REGISTER 



February 15, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE 



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